Electoral reform consultation

Chapter 5 – Administration and Governance

Reviews of electoral boundaries

Boundaries setting legislative process

Boundaries Scotland is an independent Commission responsible for reviewing and making recommendations for constituencies and regions for the Scottish Parliament; the number of councillors on each council in a Local Government area; the number of wards for Local Government elections and their boundaries; and the extent of council areas.

The Scottish Elections (Reform) Act 2020 removed the discretionary power for Scottish Ministers to modify or reject Boundaries Scotland's proposals when making secondary legislation to implement the proposals. Ministers previously had discretion to modify or decide not to implement changes. Instead, Ministers were required to lay orders without having a say but those orders would only be passed if the Scottish Parliament voted to approve them. Changes were also made in 2020 to make legislation implementing Local Government boundary changes subject to parliamentary approval. These changes followed a Scottish Government consultation on boundary reviews in 2017 where 75% of those responding to the relevant question considered that the Scottish Parliament should be able to challenge the recommendations of the Boundary Commission on Scottish Parliament constituencies and council wards.

In the responses to the consultation, there was a commonly expressed view that independence and impartiality were crucial to the boundary setting process in order to protect against political interference or 'gerrymandering'. There was, though, a range of views on what constituted 'independence', and the type of arrangements that would deliver the required level of independence.

There was also a widespread view that the work of the Commission should – like the work of all public bodies – be transparent and open to scrutiny, and subject to challenge where justified by the evidence or where due process had not been followed. There were differing views on the form that scrutiny and challenge should take, with some suggesting this should be provided by the Scottish Parliament or Scottish Ministers, and others suggesting it should come from outwith Parliament and / or the Government.

UK and International practice:

Following changes made under the Parliamentary Constituencies Act 2020, UK constituency boundaries are no longer subject to specific parliamentary procedure and are approved automatically (this is referred to below as 'automaticity'). In Wales, the Special Purpose Committee on Senedd Reform has recently recommended to the Welsh Government, in its Report on Senedd Reform, that boundary recommendations should be implemented without a requirement for Senedd approval. Similar processes are used in Australia and New Zealand, where parliament and ministers have no role in approving recommendations.

The Scottish Government wishes to consult on whether further changes to the boundary-drawing process could be made to ensure non-partisan consideration of boundary proposals.

Why a change is being proposed:

The removal of ministerial discretion in modifying or rejecting Boundaries Scotland reviews in the Scottish Elections (Reform) Act removed a potential opportunity for political interference. Making further changes to restrict the ability of parliamentarians to exert political influence over the boundary-setting process is a potential further step.

The change that was made in the 2020 Reform Act has not fully achieved the goal of preventing political considerations from coming in to play. As required by the Islands (Scotland) Act 2018, Boundaries Scotland carried out reviews of all six local authorities with islands and made their recommendations for change in 2021. After Ministers laid the relevant measures, two reviews were rejected despite it being acknowledged by the Local Government, Housing and Planning Committee that Boundaries Scotland had followed the methodology set out in the legislation.

Under the current process Ministers are required to ask Boundaries Scotland to carry out a further review. It was not possible for them to do in time for the changes to be implemented for the 2022 Local Government elections so this matter is outstanding and can be seen as another aspect of the process that does not work well.

The same process will be followed for the Scottish Parliament review of constituency and regional boundaries which was announced in autumn 2022 and will be completed by Boundaries Scotland by May 2025. Under current arrangements MSPs will be asked to vote on the constituency and regional boundaries for their own seats. This gives rise to a potential conflict of interest or at least the perception of one.

Changes being proposed:

Any change in process could apply to reviews of both Local Government and Scottish Parliament boundaries in order to keep a consistent approach between both processes. Since the commencement of the review of Scottish Parliament Boundaries was recently announced, it is not desirable to bring in changes when the review has already commenced (the completion deadline for the review is May 2025). However, any change agreed could be brought in for before the next Scottish Parliament review.

There are a range of approaches in drawing and approving boundaries taken across comparable democracies. There are several options for ways that Scotland could reduce the risk of political interference in the process, with some possible options set out below. It can be noted that there was a similar process for UK parliamentary reviews up until 2020 when they moved to a form of automaticity following a number of UK Parliament reviews not having been enacted and the boundaries being increasingly out of date.

Option 1:

To remove the requirement for Ministers to instruct Boundaries Scotland to conduct a review should their proposals be rejected by Parliament (as per section 17A of the Local Government (Scotland) Act 1973), and section 6 (paragraphs 4 to 4D) of schedule 1 of the Scotland Act 1998.

This would avoid the risk of ongoing cycles of reviews should the Parliament not be able to agree to the proposed changes, while accepting that the Commission has followed the methodology set out in legislation. However, should no further review be conducted, the existing boundaries would become increasingly outdated. The initial report submitted by Boundaries Scotland would then be either accepted or rejected.

This option changes the current process the least. While it removes the risk of an ongoing cycle of legislation being laid to implement Boundaries Scotland proposals and then being rejected, it does not address the wider issue of boundaries becoming increasingly out-of-date if reviews are rejected.

Option 2:

To add a provision to section 17A of the Local Government (Scotland) Act 1973), and section 6 of schedule 1 of the Scotland Act 1998 which would only allow Parliament to reject or recommend changes to a Boundaries Scotland report if there were concerns that statutory guidance or duties had not been followed. This would allow Parliament to retain a limited scrutiny role in the process, while removing an avenue for potential political interference.

This approach would be unusual. Scottish Parliament Committees are not normally restrained in their scrutiny of legislation in such a specific and directed way.

Option 3:

To change the boundary-setting process to full automaticity. Legislation would immediately implement any reviews conducted by Boundaries Scotland, without Parliament or Ministers having any opportunity to object. If it were believed that Boundaries Scotland had not upheld its legislative duties, legal challenge would be required to contest a report, or legislation introduced to overturn the process.

Automaticity was adopted for the setting of new UK Westminster constituency boundaries in the Parliamentary Constituencies Act 2020. The Boundary Commissions submit their final reports to the Speaker of the House of Commons (who is the Chair of the Boundary Commissions), who lays the reports before Parliament. A draft Order in Council giving effect to the recommendations is submitted to His Majesty in Council as soon as reasonably practicable (and in any case within 4 months). MPs do not debate or vote on the recommendations, limiting political influence over the process. If Parliament disagreed with the reports, legislation would have to be introduced to overturn the current process, or a legal challenge would have to be submitted.

This approach also closely follows the process used in New Zealand's national constituencies. In the New Zealand model, the boundaries reports are carried out by an independent commission with two political appointees – one representing the Government and one representing the opposition. This level of automaticity is also seen in the drawing of Australian federal constituency borders; however, objections are considered by an augmented committee of boundaries and electoral commissioners.

Automaticity prevents situations where politicians can frustrate or amend the process to gain a political advantage. Automaticity ensures that boundaries are drawn in line with set methodology, and that legislators being unhappy with changes made does not result in undue influence over the process.

The Commissioners that make up Boundaries Scotland are impartial experts who operate independently of the Scottish Government and Scottish Parliament. Commissioners are appointed by Scottish Ministers, with a recruitment process overseen by the Independent Standards Commissioner. This process ensures that the Commissioners, who are responsible for the re-drawing of boundaries, are not making decisions on the basis of political pressure and can act independently.

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?

• No change
• Option 1
• Option 2
• Option 3
• Other option

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

Governance - the Electoral Commission in Scotland

The Electoral Commission in Scotland - background

The Electoral Commission is the independent body which oversees elections and regulates political finance in the UK. It was set up in 2000 by the Political Parties, Elections and Referendums Act 2000 ("PPERA"). The Commission works to promote public confidence in the democratic process and ensure its integrity.

The Electoral Commission operates UK-wide but is also accountable to the Scottish Parliament for its work on Scottish Parliament and Scottish Local Government elections (referred to as "devolved Scottish elections" in this Chapter). This includes providing guidance to Electoral Registration Officers and Returning Officers, setting performance standards and measuring performance against those standards. The UK Parliament's Speaker's Committee on the Electoral Commission has an oversight role in relation to the Electoral Commission's activities on a UK-wide level. The Electoral Commission is required by PPERA to submit to the Speaker's Committee an annual estimate of income and expenditure and every five years a plan setting out its aims and objectives. Both the five-year plan and the estimate of income and expenditure are subject to the approval of the Speaker's Committee.

Role of the Scottish Parliament

The Scottish Elections (Reform) Act 2020 ("the Reform Act") made a number of changes in relation to the funding and accountability of the Electoral Commission and the Codes of Practice through which the Commission can provide guidance to candidates, political parties, campaigners and those involved in electoral administration. A key change in the Reform Act was for the Scottish Parliament to fund the Commission for its work related to Scottish Parliament elections and Local Government elections in Scotland. The Act retained the role of the Speaker's Committee in Electoral Commission oversight and created a structure for the Scottish Parliamentary Corporate Body to report to the Speaker's Committee on the Commission's five-year plan. The Commission must also submit an annual estimate to the SPCB by end September each year requesting funding for its devolved functions.

The Reform Act requires the Commission to submit a plan related to the Commission's devolved Scottish functions to the Scottish Parliamentary Corporate Body (the "SPCB"). The SPCB

a) must examine each plan submitted to it in so far as the plan relates to the Commission's devolved Scottish functions

b) must decide whether it is satisfied that the plan is consistent with the economical, efficient and effective discharge by the Commission of their devolved Scottish functions, and

c) if it is not so satisfied, may recommend such modifications to the plan as it considers appropriate for the purpose of achieving such consistency.

The SPCB must, after concluding its examination and making any recommendations report to the Speaker's Committee on its findings and its recommendations (if any) and lay the plan before the Scottish Parliament.

The Commission was also required, as soon after the end of each financial year as may be practicable to prepare and lay before the Scottish Parliament a report about the performance of the Commission's devolved Scottish functions during that financial year.

Arrangements in Wales

Senedd Cymru legislated in 2020 to set out arrangements for funding and oversight of Commission's functions in relation to devolved Welsh elections. It created a similar structure to that adopted in Scotland in relation to the Commission's five-year plan in relation to devolved Welsh elections and devolved Welsh referendums.

The Welsh legislation went further than the scheme set out in the Reform Act by requiring the Commission to prepare a report about the performance of the Commission's functions in relation to devolved Welsh elections and devolved Welsh referendums during that financial year and lay it before Senedd Cymru. It also made more detailed provision requiring the Llywydd's Committee (which scrutinises the Electoral Commission's financial estimates and five-year plans as they relate to the exercise of the Commission's functions in relation to devolved Welsh elections and referendums) to report to Senedd on its oversight of the Commission and its scrutiny of financial estimates submitted by the Commission on its spending.

The Scottish Government is interested in views on the role of the Scottish Parliament in relation to oversight of the Electoral Commission's activities in relation to devolved Scottish elections and referendums. Views are invited on whether the oversight role should be expanded. One potential option could see a subject Committee of the Scottish Parliament consider the Electoral Commission's activities in relation to devolved Scottish elections and referendums.

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.

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?

Developing the role of the Electoral Management Board

The Electoral Management Board - background

Responsibility for organising and conducting elections in Scotland sits with Returning Officers (ROs) who are appointed to that role by their Local Authority. There are 32 ROs in Scotland, one for each Authority, and, in most cases, they occupy the post of Chief Executive, but this is not a legal requirement. The Electoral Management Board for Scotland (the EMB), which is made up of a number of ROs and Electoral Registration Officers (EROs) from across Scotland, leads, advises and supports their colleagues in delivering elections and referendums. EROs ensure that electoral registers and lists of absent voters are as accurate and complete as possible, ensuring that everyone who is eligible and wants to vote is able to do so

The EMB was created by the Local Electoral Administration (Scotland) Act 2011 (the 2011 Act). It was created to better support electoral administration and co-ordinate the administration of Local Government elections in Scotland. The role of the EMB was expanded in 2020, when its general functions were extended to include co-ordinating the administration of Scottish Parliament elections. The Convener of the EMB was also granted power to issue directions to ROs about how best to conduct Scottish Parliament elections.

The EMB is unique in the United Kingdom, with no other nation operating a similar body. The Electoral Commission's report on the 2021 Scottish Parliament election noted the value of the directions issued by the Convener ahead of that election, and that most respondents to the Commission's electoral administrator survey welcomed the support and guidance from the EMB. The Commission concluded that:

"The Electoral Commission and Scottish Government should work with the EMB to support its development and to ensure effective alignment of responsibilities and activities across the different organisations."

The Welsh Government's October 2022 Electoral Administration and Reform White Paper advocates creation of an EMB for Welsh devolved elections.

Should the role of the EMB be expanded?

The role of the EMB was limited at the time of its creation. The Scottish Government made the following statement in the Policy Memorandum for the Bill that resulted in the 2011 Act (at paragraph 10):

"Where necessary to ensure co-ordination the convener will have the power of direction over local returning officers and electoral registration officers. In practice it is likely that this power will be exercised only in limited circumstances and where other options for resolving issues have been explored and exhausted."

That Policy Memorandum also noted (at paragraphs 17-19) discussion over the possible creation of a post of Chief Returning Officer for Scotland, responsible for issuing directions, coordinating and overseeing all aspects of the electoral processes for Scottish Parliament and Local Government elections. As a comparison, the Memorandum noted role of the Chief Electoral Officer for Northern Ireland in administering all elections and compiling the register of electors. However this approach was not pursued and the EMB was set up as a statutory committee.

Since 2011, the role of the EMB in the planning, preparation and delivery of elections has grown. Its actions have included:

a) Directions / recommendations to ROs and EROs to support consistency across Scotland;

b) A single point of contact for other stakeholders including political parties, parliaments, governments, Royal Mail and Police Scotland;

c) Specific advice and guidance for ROs facing local challenges; and

d) A source of expertise to input to Government policymaking around electoral issues.

In particular, preparations for the Scottish Parliament Election in May 2021 in pandemic conditions emphasised this change, with Returning Officers, Electoral Registration Officers, Government and MSPs all relying on the advice, support and direction of the EMB and its Convener. The 2021 election saw substantial leadership by the EMB. The Convener was central to discussions which informed the contents of the Scottish General Election (Coronavirus) Act 2021, which set out a number of possible options including postponement of the election and polling being held over multiple days. This had been informed in turn by EMB guidance issued during the successful holding of Local Government by-elections in autumn 2020: the holding of these by-elections in pandemic conditions was widely considered to have assisted planning for the Scottish Parliament election in May 2021. The Convener of the EMB was a statutory consultee and supported the decision making process for ROs who postponed Local Government by-elections under the Coronavirus Act 2020.

Resourcing

The costs of the EMB are met by the Scottish Government including funding the post of Secretary and administrative staff as required. Consultants can also be commissioned for specific projects such as drafting guidance. The City of Edinburgh Council has hosted the EMB since it was established and this has helped to keep overhead costs low. Running costs currently are under £200k per annum.

The Convener receives no remuneration apart from expenses. They undertake the work in addition to all their other duties as a local authority Chief Executive. The time required to fulfil the role has increased due to the success of the EMB. During the run up to elections, the Convener and Secretary can find themselves under intense pressure as they must balance the work of the EMB in supporting the electoral community across Scotland with their own local responsibilities and duties.

If the demand for support and co-ordination is going to be met it could be argued that the role and structure of the EMB should be updated.

Although changes in 2020 expanded the role of the Convener to allow the issuing of directions in relation to Scottish Parliament elections (building upon the existing power to issue directions in Local Government elections), a wider review of the role of the EMB has not occurred. The Government is interested in the views of consultees on whether or not the EMB's role should be extended.

Establishing the EMB as a body in its own right would increase running costs. We are interested in views on whether there are opportunities to offset costs through savings and efficiencies or other benefits, for example, if the EMB was able to enter into nationwide contracts on behalf of local authorities. The Electoral Commission's report on the 2022 Local Government elections highlights the issues ROs encountered in recruiting staff. The EMB could enhance its co-ordination role and look to ways to support ROs and their teams and reduce costs.

The EMB has operated well for over 10 years, and it could continue in the same way with the same powers. The Government would like to know if consultees consider that retaining the current arrangements may limit its ability to offer the support and co-ordination ROs and their teams would like to see as they face challenges on many fronts. An EMB with an expanded remit and increased capacity could also offer more training to ROs and their teams including mentoring and upskilling younger members of staff to replace those who are retiring or leaving. The Government is also interested in possible changes that could help to ensure that the EMB continues to operate successfully in the future.

Two main options have emerged, but we welcome any suggestions in addition to these options:

• Setting up the EMB as a public body with the ability to provide additional support to enter into contracts and to pay for the time of the Convener and additional staff which would be required.
• No change option given the success of the current model.

Any change in relation to the role of the Convener of the EMB would have to take into account that the Convener is also the Chief Counting Officer for referendums held under the rules set out by the Referendums (Scotland) Act 2020.

Deputy Convener of the EMB

While the Convener can currently nominate a deputy who could act in the event of the Convener being incapacitated, that person would not have the power to issue directions. Scottish Ministers would have to make one of the ROs on the Board the Convener in order for them to make directions even if the Convener was incapacitated for a short time but at a time when directions were required. It would therefore seem to make sense to introduce a statutory role of Deputy Convener with authority to exercise the Convener's power of direction in the event of their incapacity.

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

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?

You said, we did

The Scottish Parliament gained new powers over elections in the Scotland Act 2016 and the relevant powers were commenced in 2017. The laws and rules for running elections often date back many years and can be difficult to understand. Scottish Ministers were, and remain, keen to explore possible improvements in electoral law. In late 2017, the Scottish Government carried out a public consultation to explore options for reforming and modernising electoral processes in Scotland. The consultation contained 25 questions. It discussed and sought views on:

• how often elections should be held
• who runs elections and how they are run
• who can register and vote in elections in Scotland
• ways of improving the accessibility of voting and elected office

The consultation ran from 19 December 2017 to 29 March 2018 and received 911 responses – 844 (93%) from individuals and 67 (7%) from organisations.

An analysis of the consultation responses is available here.

How often elections should be held

The 2017 consultation asked for views about whether Scottish Parliament and Local Government electoral terms (which at that time operated on four-year cycles) should be four years, five years or some other length. Respondents were divided in their views on this question, with 50% favouring five-year terms and 44% favouring four-year terms. The remaining 6% of respondents selected 'other length' ranging from 3 to 10 years.

Those favouring five-year terms thought this length of term would support effective government, help avoid clashes with UK Parliament elections, which were also on a 5-year cycle at that time, and reduce voter fatigue. Those favouring four-year terms thought this shorter period would support scrutiny, lead to greater accountability, and help keep the electorate engaged in the democratic process. Respondents offered a range of views on the advantages and disadvantages of avoiding electoral clashes, and of operating fixed electoral terms.

Due to clashes with UK Parliamentary Elections, the Scottish Parliament and Local Government had experienced two consecutive terms of 5 years. In the end 5-year terms were chosen since opinion was split. The change was made in the Scottish Elections (Reform) Act 2020 and the next Scottish Parliament election will take place in 2026 and the next Local Government elections in 2027.

Who runs elections and how they are run

Electoral Management Board

The consultation asked whether the Electoral Management Board for Scotland (EMB) and the Board's Convener should be given the same functions in Scottish Parliament elections as they already had for Local Government elections. A large majority of respondents (86%) agreed with this proposal. Respondents discussed (i) the positive contribution of the EMB in running Scottish Local Government elections; (ii) the importance of individuals and organisations involved in running elections being (and being seen to be) independent; (iii) governance arrangements for the EMB; and (iv) possible other duties and responsibilities which the EMB should take on.

As a result of such strong support, the Convener of the EMB was given by the Scottish Elections (Reform) Act 2020 the same statutory functions for Scottish Parliament elections as they already had for Local Government elections. One of these functions included the power to issue directions to Returning Officers and Electoral Registration Officers. This proved very valuable in providing support and direction in running the Scottish Parliament election 2021 during the pandemic. The EMB also played a vital role in the running of the Local Government elections in 2022. We now feel it is an appropriate point at which to consult on how the role of the EMB might be further developed.

Role of Returning Officers

Respondents were also asked for their views in relation to the appointment, role and remuneration of Returning Officers (ROs) in Scottish Parliament elections. Returning Officers are appointed on a personal basis by their council, undertaking the role for both Local Government and Scottish Parliament elections (usually it is the local authority chief executive but does not have to be). A large majority of respondents (86%) thought that the RO appointment for Scottish Parliament elections should continue to be made on a personal basis. Respondents emphasised the importance of the RO role being independent, free from 'political interference' (real or perceived) and accountable to the courts.

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: 36% said 'yes' and 64% said 'no'. Those in favour thought this arrangement would: (i) represent good value for the taxpayer; (ii) allow local authority chief executives to delegate the work involved to other staff in the local authority as they do for their other duties; and (iii) 'regularise' what is, in most cases, already current practice.

Those who were opposed thought this arrangement would: (i) compromise the independence of the RO; (ii) cause problems regarding the employment of temporary election staff; and (iii) remove the flexibility of local authorities to appoint the most appropriate person for the role – which may not necessarily be the chief executive.

In recognition of the strong support for the RO role to remain unchanged, no change was made. However, a review of Returning Officers fees was undertaken. The Local Government and Communities Committee published a Report on Payments to Returning Officers in Scotland in 2017.

Agreement on a revised level of fees was reached before the Scottish Parliament election in 2021 but the change was not implemented because of the impact of Covid-19.

Ballot papers

The consultation put forward proposals for removing the then legal requirement for candidate addresses to appear on ballot papers in Local Government elections. Two-thirds of respondents (64%) agreed with this proposal, and one-third (36%) disagreed. Those in favour of including candidate addresses on ballot papers thought this was important for local democracy and accountability. Those in favour of removing candidate addresses thought this would help protect the privacy and personal safety of candidates and their families. A substantial group of respondents supported including partial address information (e.g. partial postcode, ward, or town) on ballot papers to give an indication of place of residence.

This proposal was taken forward in The Scottish Local Government Elections Amendment Order 2020. Following the Local Government elections in 2022, which was the first widespread use of ballot papers without candidates addresses, we are now proposing a further option of candidates being allowed to show the ward in which they live. This reflects suggestions that voters would like to know if a candidate lives locally.

Feedback from COSLA and others is that candidates who act as their own agents wish to have their address kept out of the public domain and we are considering ways we can do this in the current consultation.

The consultation paper also discussed options for countering the 'list order effect'. At present, by law, candidates in local council elections are listed in alphabetical order by surname on the ballot paper. 'List order effect' can result in candidates who are listed higher on the ballot paper being selected over those who are listed lower – thus, those who are further down the list are at a disadvantage. The consultation asked for views about (i) whether a change should be made in the way in which candidates are listed on ballot papers and, if yes, (ii) what form of system would be preferable (rotation, randomisation, alphabetical–reverse alphabetical, or another system).

Overall, 81% of respondents supported making a change in the way candidate names are listed on local election ballots papers to counteract the list order effect. Respondents favouring change thought this would be fairer for all candidates. Those opposed thought that the risks of changing the current alphabetical ordering of names were too great. These risks included (i) the potential to cause confusion among voters (particularly if there were multiple versions of a ballot paper in the same ward); (ii) substantially increased costs (in printing, and in retraining polling staff); (iii) practical difficulties in implementation (in terms of proofreading and pre-checking ballot papers, and in counting votes); and (iv) adverse impacts on voters with disabilities (e.g. dyslexia, learning disabilities, cognitive impairments, visual impairments, etc.).

Among the respondents favouring change, 64% preferred a system of randomisation – which was described as the 'fairest' way to list candidate names and more likely than a rotational system or alphabetical–reverse alphabetical system to overcome the list order effect. However, there was disagreement about whether there should be one version of a ballot paper in each ward (with names listed in random order), or multiple versions. Respondents emphasised that any proposed changes to the design of ballot papers must (first) be extensively tested and assessed for its impact on voters.

The Electoral Commission then undertook research and published their findings in 2019: Their research found:

• the order of the candidates had no impact on voters' ability to find and vote for their preferred candidates on the ballot paper
• organisations representing disabled people were concerned that any changes would impact on a disabled person's ability to familiarise themselves with the order and layout of the ballot paper before they come to vote. People with sight loss rely on the large poster version of the ballot paper which could not be provided if every ballot paper was different.
• electoral administrators raised concerns about the potential for voter confusion and increased costs resulting from any changes
• there was no clear consensus amongst political parties about how the names on ballot papers should be ordered.

This matter was discussed during passage of the Scottish Elections (Reform) Act 2020, with the (then) SPPA Committee which concluded (in its Stage 1 Report) that there was no consensus on how the list order effect should be addressed and that "There is no point simply replacing one set of problems with another". The Committee recommended:

"The Committee considers that the previous research commissioned by the Scottish Government on the list order effect was fairly narrow in scope. The Committee recommends that the Scottish Government should ask the Electoral Commission to take a wider look at the alternatives to the current alphabetical ordering system, in order to set out the pros and cons of different approaches. The Scottish Government could then consider whether there would be merit in piloting any specific alternatives and report back to the Parliament on the proposed approach."

Assessment

In addition to the potential impact on voters with sight loss and the scope for voter confusion identified by the Electoral Commission, there are concerns that adjusting or randomising the order would bring significant additional administrative challenges for electoral professionals (e.g. in checking ballot paper proofs and during a manual count). Such changes could also drive additional printing costs and raise cost implications for future eCounts. As a result, the Government has no plans to undertake further research unless and until there is a specific proposition that is practical, accessible and which has attracted cross-party support.

Electronic voting

The 2017 consultation paper discussed possible options for introducing electronic voting into Scottish elections, including the use of electronic voting machines at polling stations, and internet and mobile phone voting.

There were mixed views in relation to these questions: 62% of respondents said they would be happy to use an electronic voting machine in a polling place instead of a traditional ballot paper; 49% said that if internet or mobile phone voting was available, they would choose to use that rather than vote at a polling place or by post; and 35% said that if internet or mobile phone voting was available, they would be more likely to vote.

Respondents emphasised the importance of public confidence in the electoral process. They thought electoral processes should be verifiable (able to be independently audited and validated), secure (free from outside interference) and anonymous (to protect against coercion). Respondents disagreed about whether electronic voting could assist with and / or guarantee these objectives – either now or in the future – and they offered a wide range of arguments, ranging from the principled to the pragmatic, both for and against electronic voting. Respondents often referred to published evidence in their responses to these questions, and they offered varying interpretations of the evidence depending on whether or not they favoured the introduction of (various forms of) electronic voting.

Work was undertaken to consider whether electronic voting machines might be helpful to voters, but these were proving to be costly and did not offer the option of remote voting. The National Cyber Security Council considered that the security issues remained with any form of electronic voting in the context of national elections.

The consultation paper also discussed the possibility of voting on more than one day and being able to vote in any polling place in Scotland (rather than at a single, assigned polling place). Overall, 38% respondents supported the idea of being able to vote on more than one day, and 62% did not, with a wide range of reasons offered for the two opposing positions There were mixed views on the desirability of being able to vote at any polling place (54% were in favour and 46% opposed). Those in favour thought that such a system would reduce the requirement for postal voting and help make voting more accessible. Those against the proposal thought this was an unnecessary change (given the availability of postal voting), and that it could increase the risk of electoral fraud, be expensive, create practical problems, and remove the local dimension to voting.

At the May 2022 Local Government elections in Wales, a number of pilots were run to gauge the effect of allowing voting over a number of days. Following those elections, the Electoral Commission published its "Advance voting pilots evaluation" on 12 June 2022. The Electoral Commission's research indicated:

"that the opportunity to vote in-person ahead of polling day does not, on its own, boost turnout significantly".

and the Commission concluded that whilst:

"the option was welcomed by those that used it and it does offer an additional choice for voters. We cannot judge, from the evidence of the pilots, what impact advance voting, if introduced, would have on turnout over time".

As part of the contingency planning for holding the Scottish Parliament election during the pandemic provision was made to hold voting on more than one day in the Scottish General Election 2021 Act. This measure was not needed in practice, but it could have been used to accommodate social distancing. No further action is proposed on early voting at this time; however we will continue to monitor any advance voting pilots which are undertaken in other parts of the UK.

Electoral boundary reviews

The consultation paper asked a series of questions about the role of the independent Local Government Boundary Commission for Scotland (LGBCS). These addressed (i) the process of conducting boundary reviews; (ii) the independent nature of the LGBCS; and (iii) the option of allowing flexibility (in certain circumstances) in determining the number of councillors for Local Government wards.

Just under three-quarters (71%) of respondents supported moving to a rolling programme of reviews for Local Government electoral boundaries. The perceived advantages of this move was that it would allow more time for local consultation and greater engagement in the review process, and that it would result in electoral areas being more accountable through improved representation. However, those who disagreed thought that a rolling programme of reviews could involve different approaches being used in different areas which would lead to a lack of consistency in the conduct of reviews.

Following consideration of the consultation responses, the Scottish Ministers decided to introduce rolling reviews for Scottish Local Government wards. Legislation was implementing this change was included in the Scottish Elections (Reform) Act 2020 which received Royal Assent on 8 July 2020.

A majority of respondents (56%) were opposed to Scottish Ministers being able to change the recommendations of the LGBCS on constituency and council wards. However, there was general support for the Scottish Parliament being able to challenge the recommendations of the LGBCS (75% were in favour). In addition, a majority (73%) did not think the recommendations of the LGBCS should have to be implemented without change. In their comments, respondents offered a wide range of views, but emphasised the importance of independence, impartiality and scrutiny in the boundary review process.

Following the consultation, the Scottish Elections (Reform) Act 2020 removed the discretionary power for Scottish Ministers to modify or reject boundary proposals made by Boundaries Scotland. Ministers previously had discretion to modify or decide not to implement changes. Instead, Ministers were required to lay orders without changes, but those orders were only agreed if the Scottish Parliament voted to approve them.

Around three-quarters (72%) of respondents were in favour of a proposal to allow the LGBCS flexibility to recommend wards which have between 2 and 5 councillors, instead of the prescribed 3 or 4 councillors as at present. Respondents generally thought that increased flexibility would allow greater account to be taken of local circumstances such as natural community boundaries and existing links, rurality, population density, geography, travel times and the special circumstances of island communities. Those opposed to flexibility thought the current system worked well, or prioritised 'parity' of representation.

As a result of the views expressed in the consultation, the Scottish Elections (Reform) Act 2020 introduced changes to allow for Boundaries Scotland to base the size of Local Government ward on the election of between 2 and 5 councillors.

Who can register and vote

The consultation paper discussed a proposal to extend the current franchise to include everyone who is legally resident in Scotland. More than three-quarters (79%) of respondents supported this proposal. Those in favour argued that decisions taken by government affect all residents, and therefore all residents should have a say in those decisions. Those who were opposed generally believed that eligibility to vote in Scotland should be based on (UK) citizenship, not residence.

Respondents' views about how long a person should be resident before becoming eligible to vote ranged widely, but the most common response was 'five years', followed by 'one year', then 'two years'. Respondents often linked their views about length of residence to other factors which they felt were important to consider in assessing a person's eligibility to vote. These factors were (i) a person's status as a tax payer; (ii) their demonstrated commitment to Scotland; and (iii) their knowledge of, and familiarity with, life in Scotland.

The Scottish Elections (Franchise and Representation) Act 2020 extended voting rights to all foreign nationals with any form of leave to remain. 'Leave to remain' means permission granted to non-UK nationals to stay in the UK for a limited period of time, but does not include those seeking asylum.

The consultation paper also proposed changes which would make it easier for individuals who may be at risk from any form of abuse to register anonymously. Respondents generally supported this proposal (79% were in favour). All respondents emphasised the importance of maintaining the integrity of the electoral register. Those who were opposed to the proposal thought that an increase in anonymous registrations could compromise the integrity of the electoral register, whereas those who supported the proposal thought that safeguards could be put in place to prevent fraudulent voting.

The Representation of the People (Scotland) Amendment Regulations 2018 amended the legislation to allow for a wider range of individuals to attest applications for anonymous registrations and added additional court orders to the list of documentation which can be used to support an application for anonymous registration.

The consultation paper discussed current legislation which permits individuals to register and vote in Local Government elections in more than one local council area, if they meet the necessary residency requirements in each area. Respondents were asked if they thought (i) a voter should continue to be able to register in more than one area, but (ii) should only be allowed to vote once in Local Government elections.

Respondents were generally not in favour of allowing registration in more than one local authority area (85% were opposed). In addition, the vast majority (93%) agreed that a voter should only be allowed to vote once in Local Government elections. The predominant view was that the principle of 'one person, one vote' was appropriate for Local Government elections. Respondents thought this would promote fairness, increase public confidence, be simple to operate and reduce the potential for fraudulent voting. In addition, respondents argued that this change was desirable because it would bring Local Government arrangements into line with other (national) elections.

Subsequently, the Scottish Elections (Reform) Act 2020 made it an offence for anyone to vote in more than one Local Government area on the same day.

Access to voting and elected office

Finally, the consultation paper invited views about ways of removing barriers to voting, widening access to elected office for under-represented groups, and supporting gender balance among elected representatives.

Respondents thought that broad-based action was needed to increase participation and engagement in democratic processes among various equalities groups (older people, younger people, those with disabilities, people from black and minority ethnic communities, women, people from the LGBTI community, carers, those within the care system and other disadvantaged and socially excluded groups). They called for (i) a reinvigoration of local democracy and a raised profile for Local Government; (ii) improved citizenship education; (iii) more information to be made available in accessible formats; and (iv) a change in the 'culture' of politics (e.g. adversarial nature of party politics, tone of political discourse and associated online abuse) which can alienate many groups from becoming involved in formal politics. There was widespread support for practical actions to make it easier for individuals to participate in elections and cast their vote – there was a general consensus that this was appropriate and important. There was, however, a greater diversity of views on the extent to which government (and / or political parties) should take action to assist those from different groups in becoming elected representatives, and the extent to which any action should be statutory or voluntary.

Following the May 2022 Local Government elections, the Scottish Government worked with the Electoral Management Board for Scotland, the Electoral Commission, COSLA, the Improvement Service as well as a range of equality stakeholders to develop a survey collecting diversity data of candidates standing at the May 2022 Local Government elections.

This survey represents a key milestone in the collection of diversity data for candidates running for election to Local Government in Scotland by providing evidence which can be considered in relation to issues of representativeness of candidates as compared to the Scottish population. The results from this survey will support efforts by the Scottish Government and partners to increase the representation of under-represented groups in in elected office in Scotland.