The Scottish Elections (Representation and Reform) Bill

Change is sweeping through the UK electoral system. The Elections Act of 2022 introduced a raft of reforms, including the famous voter ID requirements for English and UK Parliamentary elections. In Wales, the government has also introduced significant modifications to the way elections work, including votes at 16, advance voting pilots, and changes to nomination notices, with much more on the way.

Now it’s the turn of Scotland, where, following a consultation, the government at Holyrood has introduced the Scottish Elections (Representation and Reform) Bill. In this blog we review the Bill as introduced, and discuss some of the provisions we’re most interested in.

While less transformative than the UK/English and Welsh legislation, the Scottish Bill nevertheless contains exciting potential. In particular, there are proposals for greater innovation in electoral matters, including (in the accompanying press release, but not the Bill itself) the eye-catching suggestion of digital poll cards, better funding for democratic engagement, and a more powerful Electoral Management Board.

What’s in the Bill?

The Bill affects elections and elected officials in the Scottish Parliament and local government in Scotland. In summary, the Bill:

• Extends candidacy rights to foreign nationals with limited leave to remain.
• Expands the disqualification criteria for MSPs and councillors.
• Modifies the law relating to campaign expenditure to match the UK Elections Act.
• Creates new powers for Scottish elections to be postponed in an emergency.
• Expands and provides new powers for electoral pilot schemes, and provides an option for funding such schemes.
• Introduces digital imprints for third-party campaigning.
• Extends the deadline for Boundaries Scotland’s next report from 2028 to 2031.
• Requires the Electoral Commission to produce a separate 5-year plan for Scotland.
• Changes the constitution of the Electoral Management Board (EMB), “most significantly giving it a separate legal personality as a body corporate and providing for the post of deputy convener.”

Going digital

The area of greatest immediate relevance to Democracy Club’s work is section 5, ‘Election Pilots and Democratic Engagement’. If enacted, this would give the Scottish Government and EMB powers to create pilot schemes to test methods for increasing engagement in local elections. Local authorities have had this power since 2002, but it’s been rarely used.

So far, the main suggested use for these powers is a trial of digital poll cards. The accompanying policy memorandum lays out the Scottish Government’s thinking behind this reform:

The Bill will extend the power to propose electoral pilots to Scottish Ministers, the EMB and EROs. It is hoped that this will increase the prospect of pilots on electoral innovations being undertaken…

Examples of possible future pilots in this area include the use of digital poll cards (transmitted to voters by email or App)… aimed at making these accessible for people with sight loss. Other possibilities include a pilot of a new tactile or audio voting aid. No pilots under this legislation are currently planned. It is not anticipated that these changes will result in a substantial number of pilots… By making it possible for pilots to be proposed by the EMB and EROs (this is in addition to the existing power for local government areas to propose pilots), the Government hopes to encourage innovation.

We think the digital poll card idea is really interesting, and could improve the accessibility of election information for all sections of the Scottish electorate. In our response to the initial consultation, we argued that:

[Digital poll cards have] the potential to be much more versatile than a physical poll card: for example, a digital poll card could be easily updated in case of last minute changes to polling place location. Such a system also opens up the possibility of providing other information to electors, such as information about the ballot paper.

Funding!

Part 5, section 29 (1) of the Bill is refreshingly straightforward:

The Scottish Ministers may provide financial assistance (including grants, loans, guarantees and indemnities) to a person who, to any extent, undertakes, or engages in, activities with the purpose of increasing democratic engagement (or proposes to undertake or engage in such activities).

‘Democratic engagement’ is defined as “activities which, in the opinion of the Scottish Ministers, are undertaken with a view to increasing or improving registration for, or participation in (whether by voters, candidates, campaigners or any other persons), any Scottish Parliament election or local government election.”

The Policy Memorandum gives the Scottish Government’s thinking:

One possible example would be a grant to promote work on improving accessibility information in polling places (for example, for those with sight loss). Where a grant or assistance scheme is put in place, this is expected to be focussed on local organisations which work with harder to reach groups and which have clear objectives to improve democratic participation, such as through encouraging registration.

Changes to the Electoral Management Board

In the long-term, the most impactful effects of this legislation may turn out to be the changes to the Electoral Management Board. The EMB, which was founded in 2008 and written into law in 2011, is at present a modest body with responsibility for “the general function of co-ordinating the administration of local government elections in Scotland”. It is funded to the tune of £200,000 by the Scottish Government, but the convenor (currently the CEO of Comhairle nan Eilean Siar, the Western Isles council) does not receive a salary, and there are no permanent staff.

Democracy Club have worked with the Scottish EMB in recent elections, and have found it to be a capable and useful body. Our data collection for the polling station finder had made only modest progress among Scottish councils until the EMB stepped in in 2021 and ensured that every council in Scotland took part.

The policy memorandum states:

The Bill provides for a change of status of the EMB from a statutory committee to a body corporate so that it can enter into contracts and play a fuller role in assisting local authorities. The Government is consulting with the EMB on any need for further adjustments required as a consequence of this change.

The Bill proposes the creation of the post of Deputy Convener of the EMB. While a deputy would have been possible under current arrangements, the Bill will allow any Deputy Convener to assume the powers of the Convener to issue directions if the Convener became incapacitated as well as being able to deputise generally for the Convener.

What effect will this all have?

The major difference between this Bill and the UK/Welsh reforms is that the Scottish bill grants powers, but doesn’t introduce many immediate changes. As the policy memorandum makes clear, the Government does not yet plan to do much with the new powers, and where action is envisioned, it is of a limited nature. For example, the digital poll card proposal appears to be a non-interactive version of our own polling station finder, aimed at blind or partially sighted people, while the proposed funding is focused on local groups and minority communities. Similarly, while the Scottish Government is clear that it intends to expand the scope and resources of the EMB, no extra funding for this more powerful body has yet been identified:

This is because they are enabling changes: the Bill does not require paid postholders or other expenditure to be incurred, but it will make this possible if and when funding can be secured.

It’s obvious that the Scottish Government’s thinking on this Bill has been influenced by developments in Wales (the words ‘Wales’ and ‘Welsh’ occur 45 times in the accompanying policy memorandum). The two nations bring different concerns and experiences to the table - turnout in Scottish elections is considerably higher than in Welsh, for example - but the problem of low engagement is nevertheless common to both (as well as England and Northern Ireland). In Wales, the government has moved ahead with a more powerful EMB which would provide voter information alongside the electoral administrator support functions, notably via an online platform. It will be interesting to contrast the outcomes from this more comprehensive and national approach with the more focused strategy adopted in Scotland.

Overall, the new powers offered by the Scottish Bill contain much potential. The lessons learned from electoral pilots will be invaluable, and the promise of new funding is great, especially in an area such as democracy, which - as we know from experience - is so difficult to fund from traditional grant sources. We’ll be watching the progression of this Bill through parliament with great interest, and are excited to see its fruit in future local and parliamentary elections in Scotland.

The Standards, Procedures and Public Appointments Committee is seeking views on the Scottish Elections (Representation and Reform) Bill until 6 March - you can submit feedback on the Scottish Parliament website.

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