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Consultation on a Chief Returning Officer for Scotland

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CHIEF RETURNING OFFICER FOR SCOTLAND

A consultation exercise to discuss options for the creation of a post of Chief Returning Officer for Scotland

CHIEF RETURNING OFFICER FOR SCOTLAND CONSULTATION PAPER

Introduction and Background

1. Following the well publicised problems of the 2007 Scottish Elections, Ron Gould, former Assistant Chief Electoral Officer of Canada and electoral administration expert, was appointed by the Electoral Commission to carry out an independent review. The Gould Report 1, published on 23 October 2007, identified the complex institutional, legislative and organisational landscape that lay behind the Scottish elections of May 2007. We believe the fact that the legislative responsibility for elections in Scotland is split between Holyrood and Westminster further complicates the process. The Scottish Parliament has legislative responsibility for the local government elections, while the UK Government has responsibility for the UK Parliamentary, European and Scottish Parliamentary elections. On 10 January 2008 the Scottish Parliament voted in favour of transferring jurisdiction for the Scottish Parliamentary elections to Scotland. The UK Government has not accepted this argument yet but the Scottish Government will continue to press them. The Scottish Government published its response to Gould 2 in March 2008. In this response we recognised that the appointment of a Chief Returning Officer ( CRO) for Scotland was one of the most significant recommendations in the Gould Report and undertook to publish a consultation paper on the creation of a CRO by the end of this year.

2. Ron Gould described a complicated and fragmented combination of legislation and management responsibility that provided no clear accountability to the people of Scotland for elections. The Scottish Government believes that there should be a clear structure for the management of elections in Scotland to address this. The proposal to create a CRO should be considered in that context.

3. Since the Gould Report a number of organisations, most notably the Electoral Commission, have considered the possible future structure of electoral administration in Scotland. This paper seeks to bring together the various contributions to the debate in this area and facilitate, through the consultation process, the development of an agreed way forward for electoral administration in Scotland.

4. The system of electoral administration in Scotland is unique in the UK in that electoral registration and the conduct of elections are carried out by separate bodies. Scotland has 32 local authorities, each with an appointed Returning Officer who has a statutory duty for the conduct and administration of elections. Electoral administration on the other hand is carried out by 15 Electoral Registration Officers who carry out the registration process across Scotland.

The current split of responsibility

5. The Scottish Parliament, under the Scotland Act 1998, has responsibility for setting the legislative framework for elections to all 32 local authorities in Scotland but not for the franchise. The Scottish Government is responsible for developing elections policy for local government elections in Scotland and implementing these policies through legislation following the necessary parliamentary scrutiny process.

6. The Scotland Office is responsible for policy and the legislative framework relating to the Scottish Parliamentary elections. The Scotland Office also retain responsibility for the electoral registration process, for both the Parliament and local government elections in Scotland and for the election franchise for local government elections in Scotland.

7. The Returning Officer is appointed by the local authority to administer the election of councillors to the authority. In most cases the Returning Officer for local government elections will also be the Returning Officer for Scottish Parliamentary, UK and European elections. The Returning Officer has responsibility for all aspects of the organisation and conduct of elections and is answerable, through statute, to the Courts. For European elections one of the 32 Returning Officers in Scotland is designated by order of the Secretary of State as Regional Returning Officer (see paragraph 44 below).

8. Electoral Registration Officers are responsible for preparing and maintaining the register of electors and the lists of absent voters in their specified area. The lists are used for both Scottish Parliamentary and local government elections.

9. The professional associations play an important role in the organisation and delivery of elections. The membership of these associations is made up of elections experts and administrators and they represent the views of elections professionals. The main professional associations in Scotland are the Society of Local Authority Chief Executives and Senior Managers in Scotland ( SOLACE), the Society of Local Authority Lawyers and Administrators in Scotland ( SOLAR), the Association of Electoral Administrators ( AEA), and the Scottish Assessors Association ( SAA).

10. The Electoral Commission is an independent body that reports directly to the UK Parliament. The Commission holds a number of functions in relation to Scottish Parliamentary elections, these functions can be described as regulatory, operational and advisory. These roles include: providing guidance for candidates, agents, Returning Officers and Electoral Registration Officers, providing public information campaigns and providing general guidance and advice on changes to electoral law and procedures. The Commission also carries out a UK role in relation to the regulation of political party financing and matters relating to electoral registration. The Electoral Commission has no formal remit in relation to Scottish local government elections. However, the Commission can undertake specific tasks if invited to do so by the Scottish Government.

Elections Steering Group

11. An Elections Steering Group was established to oversee and coordinate the delivery of the 2007 local government and Scottish Parliamentary elections. The make-up of the Steering Group reflected the broad range of stakeholders with various responsibilities for different aspects of the electoral process. The Steering Group comprised:

  • The Scottish Executive
  • The Scotland Office
  • The Electoral Commission
  • SOLACE
  • SOLAR
  • AEA
  • COSLA
  • The Scottish Assessors' Association
  • Others (for specific subjects as required)

12. The Steering Group approach was a tried and tested model in Scotland. A similar Steering Group model had been used successfully in the preparation for and planning of the 1999 and 2003 combined elections.

13. The 2007 Elections Steering Group was made up of a panel of electoral experts with an in depth knowledge of electoral administration in Scotland. However, like its predecessors, it was not established in statute and had no power to impose binding decisions on the other parties involved, or other electoral administrators and Returning Officers across Scotland.

14. The Steering Group undertook a number of vital tasks in the run up to the 2007 elections. Members considered and examined the legislative and administrative aspects of both the Scottish Parliament and Scottish Local Government Elections.

15. The Group identified and agreed the tasks required to be completed to enable the elections to take place. This took account of the respective statutory roles of the Scotland Office, Scottish Executive, the Electoral Commission, Returning Officers, Electoral Registration Officers and Local Authorities. The Group oversaw the management and completion of those tasks by delegating the implementation of specific tasks to sub-groups and provided technical advice and executive decisions as necessary.

16. Given the complexities and range of the tasks undertaken by the Group, a number of sub-groups were required to take forward work in specific areas. The Legislation sub-group examined the election rules for both the Parliamentary and local government elections. The Training and Guidance sub-group examined the training material that was issued to electoral administrators and Returning Officers. The Forms Sub-group examined the design of election forms. The Public Awareness Sub-group examined the voter information campaign, and the E-counting sub-group examined the procurement and implementation of the electronic counting system. The various sub-groups submitted papers to the Steering Group for comment and decision.

Proposals for a Chief Returning Officer ( CRO)

17. After his examination of the 2007 elections, Ron Gould concluded that the roles, relationships and accountability of those responsible for planning and delivering elections in Scotland were so fragmented as to fundamentally interfere with their efforts to deliver problem-free elections. He argued that, in order to organise a process as complex as an election, and to hold them accountable for the conduct of the election, the principal players involved required clearly defined responsibilities with the authority to carry them out in an effective manner.

18. To achieve this, Gould recommended the creation of a post of Chief Returning Officer to coordinate the efforts of those administering the electoral process. With a clearly defined role in relation to Ministers and other stakeholders, the CRO would help improve decision making and ensure consistency in the planning and execution of future elections in Scotland.

19. Gould recommended that the role of Returning Officers should be professionalized in that their selection (and the selection of their deputes) should be in accordance with standards and criteria established by the CRO in consultation with existing Returning Officers.

20. The report also recommended changes to the roles of individual Returning Officers. Gould said that these posts should be 'permanent' (or full time in that the post holder would concentrate solely on electoral work) from the day the election is called to a period after the election is held which is appropriate to ensure that all statutory tasks have been completed. The posts of Regional, Constituency and local Returning Officers should be combined in the revised role as required. He also recommended that consideration be given to other electoral responsibilities which could be applied to the post, such as the registration of voters. Gould suggested that if Returning Officers' functions were expanded to include all electoral functions there would be a strong case for having a full time Returning Officer within each local authority. The role, function and status of Returning Officers will need to be examined as part of the consideration of whether to establish the post of CRO.

21. Gould recommended that the CRO should be responsible for the overall direction of efforts in planning and delivering elections to the Scottish Parliament and local government in areas where there was a need for combined effort and consistency. This would cover areas such as the provision of electronic counting services, setting criteria for ballot paper rejection by Returning Officers, the design of ballot papers, the introduction of new technology and the co-ordination of public information campaigns. Each of the 32 Returning Officers would retain responsibility for all but those matters requiring common, consistent, and/ or co-ordinated administration. To assist in this role the CRO should be able to issue directions to Returning Officers where necessary.

22. Gould also recommended a review of the role of politicians in the electoral process. This was not intended to remove completely the input of political parties in the administration of elections, but to distance them and reduce the possibility that individual parties could influence electoral administration to their advantage. Gould suggested the proposed CRO could make recommendations to an all-party committee on how elections could be administered most effectively, based on existing and emerging national and international standards.

23. In accordance with Ron Gould's assumption that the CRO should have responsibility for all elections in Scotland he suggested that the CRO could be appointed jointly by both the Scottish and UK Parliaments and recruited through open competition regulated by UK and Scottish Commissioners for public appointments. The funding for the post would be the responsibility of the Scottish Government, and the CRO would report jointly to the Presiding Officer of the Scottish Parliament and the Speaker of the House of Commons. The issue of whether a CRO should be appointed to oversee all elections in Scotland or just local government elections is considered later in this paper. The principles to be taken from Gould's analysis are that there should be an open appointment process with a role in this for Parliament.

Potential benefits of a CRO

24. In the light of Ron Gould's analysis of the situation leading up to the 2007 elections, the creation of a CRO would appear on the face of it to offer the potential for improving the co-ordination and management of the electoral process in Scotland. The benefits of a CRO, with a properly defined, understood and communicated role, might arise from a number of general features:

  • A CRO could provide an overarching coordination function for all the tasks that need to be undertaken to deliver an election;
  • A CRO could ensure consistency of delivery for all electoral functions across Scotland. This would be especially important for large scale projects such as the procurement, testing and implementation of an e-counting system, the development and delivery of public information campaigns and the provision of best practice guidance to election managers and administrators;
  • A CRO could provide clear lines of accountability for the delivery of elections in Scotland;
  • The CRO could form an effective link between Government and the election professionals. While remaining independent and answerable to the courts, the CRO would provide the single voice advising Ministers on best electoral practice;
  • A CRO should be able to issue direction to fellow Returning Officers. However, accountability at a local level would still remain with the local Returning Officer. Accountability for national schemes or projects could lie with the CRO;
  • A CRO should also be seen to be independent from Ministers. The powers, obligations and rights of local Returning Officer are set out in statute (Representation of the People Act 1983). While this independence should be protected, Ministers should still have access to the CRO and be provided with regular updates on progress and decisions. Such access would allow for a regular exchange of views. Ministers would remain accountable to the Scottish Parliament for legislation and funding of elections.

Role of a CRO

25. The Gould Report contained a number of suggestions as to the role and remit of the CRO. Using this as a basis, the duties of the CRO might include:

  • Chairing a committee to rationalise electoral legislation

The proposed CRO could chair a committee of stakeholders to examine the numerous pieces of legislation governing elections in Scotland, with a view to rationalising the law. Gould recommended that one outcome of such a group could be to minimise the role of primary legislation in what he called the micro-management of electoral administration. This group would comprise Returning Officers and Government representatives with the Electoral Commission providing advice to the group members. The group would also consult with other stakeholders such as the Royal Mail, prosecution service and police as appropriate.

  • Chairing elections planning / steering group

The model for previous election steering groups is described above. An enhanced or developed steering group comprising electoral management professionals and Government representatives could be chaired by the proposed CRO. Gould also recommended that the CRO chair the elections planning group to ensure that its decisions are applied in a consistent manner.

  • Chairing formal consultation process for finalising ballot papers

The report proposed that the CRO would establish and chair a consultation process in which Returning Officers and the Government could discuss proposals for ballot design and their implications. This would also include opportunities for Returning Officers to provide input related to the centralised production of ballot papers, and examine any potential issues that may arise from proposed designs. The Chair would be responsible for ensuring that any changes took into account appropriate timescales to allow effective production and distribution of postal ballots to voters.

  • Providing authoritative advice directly to Ministers and legislators

Gould recommended that the CRO would assist stakeholders and Ministers by providing tools and information to aid the management of elections, such as timescales and task allocations, and would facilitate consensus on approaches to manage individual tasks. The CRO would also provide a central point for public assurance that effective plans and systems of management were in place for upcoming elections.

The CRO could also provide expert advice to members of parliament to ensure that legislation accurately reflects the requirements of effective electoral management. Gould also proposed that the CRO could be given authority to recommend to an all-party committee on how elections could be best administered to national and international standards.

  • Taking responsibility for conducting public information campaigns

This would include providing information both at polling stations themselves and nationally through voter education campaigns. The CRO would work with constituency Returning Officers to ensure that information given at the ballot box was consistent throughout Scotland and across campaigns.

  • Developing and implementing strategies that ensure all ballot papers are adjudicated consistently

The CRO would be responsible for the provision of guidance materials and advanced training which would ensure that Returning Officers and electoral professionals could adjudicate ballots in an effective, consistent manner.

  • Verifying electronic count information before storage

To ensure that the final storage of paper and electronic information took place in a manner that complies fully with relevant legislation, and that would ensure the data's integrity and security.

  • Taking responsibility to waive proposed six-month rule prohibiting the introduction of new electoral legislation within six months of an election, if appropriate

Gould suggested the CRO could have the power to assess the operational impact of any proposed change to electoral legislation within six months of the poll date, and waive the proposed law prohibiting a change within this timescale.

  • Developing proposals for the further professionalisation and selection of Returning Officers

Gould recommended that the CRO, working with existing Returning Officers, would develop standards and criteria for the recruitment of the revised Returning Officer posts and their deputies, to further professionalise their roles.

  • Taking responsibility for the integration of electronic counting into the management process and introduction of any new technologies.

The CRO would need to examine how best to ensure that the operational requirements of electronic counting are integrated into management processes by the proposed review of electoral legislation.

  • Registering political parties in Scotland

Gould recommended that the process of registering political parties in Scotland could be transferred to the proposed CRO from the Electoral Commission.

  • Providing standardised training for electoral management professionals

The CRO would take over responsibility for the training of electoral management professionals. Standardised training would provide consistency of approach to electoral administration in areas such as adjudication of ballot papers and provision of information to electors.

26. Gould suggested that the pure operational aspects of elections should be separated from all other parts of the process. Under this model the creation of a CRO with the functions and powers suggested by Gould would have implications for the role of the Electoral Commission and other stakeholders. The Electoral Commission currently has a range of functions and duties some of which Gould suggested might be more appropriately performed by, or on behalf of, the CRO. He argued that all operational roles should become the responsibility of the CRO with the Electoral Commission continuing to carry out its advisory role.

27. Gould also suggested the post of CRO might take on some of the other responsibilities of the Electoral Commission. His report described the Commission's functions as being the formal reporter and regulator on the conduct of the poll, as advisor to electoral stakeholders and also fulfilling an operational role, responsible for administering public information campaigns, training of professionals and political party registration. On Gould's analysis, the creation of CRO would take responsibility for carrying out many of these away from the Commission. The Electoral Commission would retain its important role of 'watchdog' through rigorous post election reporting. The Commission would also continue to provide advice, guidance and recommendations to the CRO on the broad range of electoral administration issues. The Commission would provide a degree of scrutiny for the role of the CRO. This model would separate the operational and audit and advisory functions between the CRO and the Electoral Commission.

Relationships

28. The roles of individual post holders and organisations throughout Scotland have been described above. In many respects these individual roles and tasks are clear. The gap identified by Gould, and acknowledged by others, relates to the overall accountability for the process as a whole. Any consideration of whether a CRO should be appointed therefore must cover not only the prospective role of the post holder but also inter-relationships between the key players and accountability.

29. The aim of any change must be to achieve a less fragmented structure for decision making. We are not aware of any great demand for a move towards centralisation of the electoral process in Scotland but there is a pressing need to strengthen consistency. A CRO could be one way to supplement and strengthen the existing mechanisms for consistency.

30. It would be important to define clearly the relationship between a CRO and other key partners in this area. The independent status and seniority of Returning Officers in Scotland is seen by many as a safeguard of the electoral process. The creation of a CRO should not weaken this at a local level. It is also important that lines of communications between the post holder and others are clear and as short as possible. It will not benefit anyone to introduce bureaucratic or unwieldy structures.

31. The possible creation of a CRO raises two immediate and fundamental questions: What would a CRO be accountable for and what powers would he or she have? It is important not to fudge these in the search for consensus. The management and administration of elections today is based on many years of collaborative working across local authorities and areas. We do not want to lose the advantages and positive aspects of this collaborative approach. We must be careful not to introduce a system which, while intended to improve the situation, is likely to fail because it is based on a potentially confused and cluttered starting point.

32. Any change to the current arrangements must be able to deal with real and potentially difficult events. For example, responsibility for decisions on what would happen in the event of an eve of poll situation in which the CRO and local Returning Officer are at odds over what to do about suspicion that postal ballots have been tampered with. Any new arrangements developed would need to be clear as to whether the CRO could direct the Returning Officer in such circumstances. If the CRO could not issue a direction, would the CRO be willing to accept accountability for the quality and integrity of the election results?

33. The public, media and Parliament will want to know who is accountable in the event of any adverse development in the running of an election. The creation of a new post of CRO would serve to identify the post holder as being the responsible or accountable person. This perception must match the reality of the decision making process.

34. The consideration of accountability raises other questions. The question of whether the CRO post holder is to be given the power of direction could be a determining factor for some applicants for the post. Applicants would be looking for a degree of control or influence if they were to be accountable for the conduct or at least coordination of elections. That said, the experience of local Returning Officers based on established practice is that they have the authority and responsibility. Giving the CRO the power of direction will affect the accountability, responsibility and authority of the Returning Officer at a local level.

35. Returning Officers are independent and accountable but any new arrangements must make provision for the involvement (and accountability) of Ministers and Parliament. The new proposals will need to allow for informing and involving politicians, without being seen to undermine the legal position relating to the independence of the Returning Officer and CRO.

Scope of a CRO

36. The general view from electoral professionals seems to be that if a CRO is appointed it must be for all elections and not restricted to Scottish local government elections. We think it makes sense to consider a CRO for all elections in Scotland and we have been discussing this with the Scotland Office. On 24 June 2008 the then Scottish Secretary published the Scotland Office's formal response to the Gould Report. 3 He said:

"I have considered the question of whether a Chief Returning Office should be appointed with full responsibility for administering all elections. The Gould report sets out a range of functions that a CRO might fulfil. However, the views that have been expressed across the political spectrum and by administrators are not conclusive. A considered examination of the structure required for administering elections in Scotland is necessary and I note that the Electoral Commission has taken the initiative in leading on an investigation on this subject and their report is expected later this summer. The Scottish Executive has also indicated that they propose to consult on the detailed options for a CRO for local authority elections later this year. Given the need to ensure a consistent approach across elections in the potential role of a CRO and the ongoing consideration that is being given to this issue I have decided that the Government should work closely with colleague across Government, the Electoral Commission and the Scottish Executive in examining this in more detail before a final decision is reached.

This will take time as any change would require primary and secondary legislation. I am very conscious of the need to make decisions now for the elections of 2011 so that there is no uncertainty about how these elections will be run. I am also conscious of the need for a period of stability in order to rebuild confidence in our electoral process. I do not think it practical therefore to make decisions on CRO to enable such a person to be in place for the 2011 elections. That is not to rule out the concept, but rather to ensure sufficient time is available to give the matter the consideration it deserves".

37. Ideally the CRO's jurisdiction would extend over all elections held in Scotland as the management and running of these elections involves similar processes, issues and substantially the same staff. This would require co-operation with the UK Government. In the absence of any agreement that the proposed CRO should cover all elections in Scotland, it is for consideration whether it is worthwhile to create a new post for local government elections only, while maintaining separate arrangements for other elections in Scotland.

38. The measure of success for any future arrangements will be whether they can ensure effective delivery of all elections and referendums. The relationships between the main stakeholders in delivering effective elections will be key to this and should be considered as part of the development of future arrangements.

Alternative Models of CRO

39. The Government is working to simplify and consolidate the range and scope of public bodies in Scotland. So we must be careful not to create new posts or organisations if we cannot justify them.

40. The Government is committed to reducing the number of public bodies as part of its programme to simplify public services in Scotland. Our aim is to drive up efficiency and effectiveness in how the public sector organises itself to provide services. In general the reduction in the number of public bodies will simplify a confusing array of organisational roles, remits and functions. The Government's overall approach is to:

  • Streamline decision making and increase transparency
  • Bring together organisations with similar skills, expertise and processes
  • Stop activity that no longer contributes to the public purpose
  • Apply much tougher tests to the creation of new bodies.

41. These principles must apply to a possible CRO. If the case is made, through responses to this consultation, for the creation of a CRO we will need to consider the selection and appointment process for the post. If the emerging view is, for example, that the necessary functions of the CRO suggest that a new post needs to be created we will need to consider whether the perceived advantages of such a new post are strong enough to pass the stringent tests for any potential new organisation. We need to keep this wider context in mind in terms of a possible CRO. There may be alternative ways of providing the co-ordination and coherence we need.

42. Given the range of duties and responsibilities which would be placed on any potential CRO it is likely that he or she will be one of the existing Returning Officers rather than an additional public office holder. If that is the case, the title and associated authority of Chief Returning Officer might be given to an existing Returning Officer, perhaps for a limited period. At the end of this term of office the role could be transferred to another individual from the body of Returning Officers.

43. There are several possible models of CRO (other than that proposed by Gould) which could be considered for Scotland.

Regional Returning Officer

44. As mentioned above the UK is divided into a number of regions for the purposes of European elections. Under section 6(2) and (3) of the European Parliamentary Elections Act 2002 the Secretary of State has the authority to designate by Order those appointed to carry out the responsibilities of Regional Returning Officers ( RROs) in England, Wales and Scotland. In Scotland the RRO is selected from one of the 32 Returning Officers. The Secretary of State may, by regulations, confer functions on the Returning Officer. Under the 2004 European Parliamentary Elections Regulations the RRO's duties encompass:

  • All aspects of the nomination procedure
  • Determining the form of the ballot paper and, if he so directs, printing and arranging for distribution to Local Returning Officers of the ballot papers.
  • Authorising the announcement locally of the count details by LROs
  • Calculating the results of the election within the region and allocating seats to candidates
  • Announcing the results of the elections in the region and publishing those results and
  • Notifying the names and other details of elected MEPs to the Secretary of State.

45. Under section 9 of the 2004 European Parliamentary Elections Regulations the RRO may give any local authority officer for a local counting area in his or her region directions requiring the provision to him of any information which that person has or is entitled to have. The power of direction is to be used at the RRO's discretion. When issued by the RRO it is the relevant Local Returning Officer's duty to discharge his or her functions in accordance with the directions

46. Guidance published by the Ministry of Justice 4 breaks down the role of the RRO into the following areas:

  • Planning and co-ordination
  • Regional co-ordination with stakeholders
  • Training, guidance and support for LROs
  • Communications and media handling
  • Data collection and performance standards
  • Fees and charges
  • Post election roles

47. The RRO is also expected to attend meetings to assist in the planning and running of elections by sharing and agreeing best practice; helping to shape the legislation underpinning the election, raising and helping to address issues of common concern and ensuring as far as possible consistency of approach. The RRO provides the Electoral Commission with advice and support in the development and delivery of its training and support programme for European elections. This model is practical and is seen to work for European elections. It could be adapted to establish a CRO to cover other elections in Scotland.

The Northern Ireland model

48. The Chief Electoral Officer ( CEO) for Northern Ireland administers all elections and compiles the register of electors. The CEO is a statutory office holder independent of Government and is supported in his role by the Electoral Office of Northern Ireland ( EONI) and has a substantial budget. The post of CEO was created in 1972 as part of the extensive changes made to local government in response to civil unrest. Many functions of local government at the time were transferred either to central government or to newly created NDPBs. In the case of electoral law, functions were transferred to the new CEO.

49. The CEO is appointed on merit by open competition supervised by the Office of the Commissioner of Public Appointments for Northern Ireland. The holder serves for a term of five years which can be extended to a maximum of ten.

50. The CEO submits an annual report 5 to the Secretary of State who must lay it before Parliament. The report sets out how the CEO has discharged his functions over the year and the extent to which his or her objectives have been met.

51. The operating costs of the CEO and EONI are met by the Northern Ireland Office and totalled £2.7m in 2007/2008. This includes the cost of voter registration but does not include the costs of running elections.

Electoral Commission Model

52. The Electoral Commission published its report into Electoral Administration in Scotland 6 on 27 August 2008. The Commission acknowledged that significant changes are needed to improve the delivery of electoral administration in Scotland and to address the important issues highlighted following the 2007 elections. Changes are required to clarify the roles and responsibilities for the delivery of elections, improve co-ordination of Returning Officers and electoral registration officers and strengthen leadership and accountability for electoral administration professionals. The Commission concluded, however, that there was not a compelling case for re-configuring the responsibilities for the administration of elections and electoral registration under a single body or officer in Scotland. The Commission acknowledged there was some support for the proposal for a Chief Returning Officer but, in the absence of any specific proposals as to what such a post would be responsible for or how it would be structured, remained to be convinced. The Commission's Report found:

  • Inconsistencies in the way that elections are delivered
  • Those who work in electoral administration accept that there is a need to provide a consistently high quality of service
  • A need for clearly defined roles and responsibilities
  • A fragmented legal and funding framework needs to be consolidated
  • No consensus on whether a fundamental change in election management was necessary and what form any change should take

53. Given a strong case for establishing a more co-ordinated approach to running elections in Scotland the Commission recommended the establishment of an Electoral Management Board ( EMB) for Scotland. The Board should:

  • Be led by those who run elections
  • Provide leadership and support and consistency
  • Be much stronger than previous steering groups
  • Have statutory recognition
  • Ensure clear demarcation between policy, operations and scrutiny

The Electoral Management Board should

  • have all Returning Officers and electoral registration officers as members
  • cover all Scottish elections
  • have the central planning of national activities as its key role
  • have a small but permanent Secretariat
  • establish an internal management group
  • have advisers and sub-groups

The Convener of the EMB should have a statutory power of direction

  • Leadership of the convener is an essential element of required improvements
  • Convener's position and powers of direction should be recognised in statute
  • Convener should be Regional Returning Officer for European elections
  • Convener should report to relevant committees of parliament
  • Returning Officers should retain responsibility for their own elections
  • Convener should be independent

The Electoral Management Board

  • Should establish a project plan for the delivery of all elections in Scotland
  • Develop and deliver any centralised aspect of an election ( e.g. procurement of e-counting solution)
  • Advise government on new legislation and policy development regarding elections
  • Advise the Electoral Commission on required public information campaigns

54. Since the publication of the Electoral Commission's report, the Scottish Government has had constructive discussions with the Commission to consider whether this proposed structure could be developed to meet the needs of a streamlined and clear cut process of electoral administration. These discussions are continuing.

Elections Steering Group

55. The administration and management of elections in Scotland is currently co-ordinated by an Elections Steering Group (see above). There seems to be wide agreement among electoral professionals in Scotland that a strengthened successor body to the Elections Steering Group is needed, either as a short term fix while plans (and possibly legislation) are put in place for a CRO or longer term as an alternative approach to the creation of a CRO.

56. A strengthened and more effective standing Scottish Elections Steering Group or Board could add considerable value to the process of electoral management and administration. Such a group could be chaired by an existing Returning Officer or other person highly experienced in electoral matters.

57. The Steering Group model could be developed to include an appointed chairman. The process for appointment would need to be considered but it should be open and seen to be fair.

58. The chairman of the group would not have a formal power of direction but would be a recognised and acknowledged figurehead leader of the election process. The chairman would advise on best practice and co-ordinate election preparations across Scotland.

59. The enhanced Steering Group would include representatives of those with a responsibility for the delivery of an election: SOLAR, SOLACE, COSLA, AEA, SAA. Scottish Government, Scotland Office and the Electoral Commission would attend group meetings as advisers but would not have an input into the decision making process.

60. Better and more formalised channels of accountability would be put in place to ensure that decisions/recommendations were being made though the Group rather than the individual sub-groups.

61. The chairman of the Group would issue regular communications to both electoral administrators and Ministers. This communication would inform both of current business and recommendations.

62. A more formalised and structured project management approach would be adopted for the delivery of elections. One member of the Group would be designated as project manager to monitor timelines, deadlines and identify risks. The Group would require a small (part time) secretariat funded centrally.

63. Returning Officers have a statutory basis and authority and act independently of Ministers. They are, ultimately, responsible to the courts and not Ministers. A Group established under, and in recognition of, these principles would create a situation where politicians set the policy framework while Returning Officers and other professionals administer the elections. Election practitioners should take the lead on the group with Government representatives and Electoral Commission in attendance. Election practitioners have an independence from Ministers in law but there are strong arguments in favour of regular dialogue and exchange of views with politicians.

64. The distinct roles of policy and legislation on the one hand and administration and electoral management on the other would be maintained by a group structured along these lines. Matters of policy and legislation clearly lie with Ministers while the delivery of elections rests with Returning Officers and Electoral Registration Officers. These distinct and separate roles can be reflected in the new planning arrangements at national level. That said, there is an understandable interest on both sides in developments elsewhere and arrangements should be made to ensure that practitioners are able to inform policy development and politicians are kept informed of, and able to offer their views on, operational developments.

65. There is a strong argument that the Group should have oversight of all statutory elections. This would avoid the duplication of effort in creating different working / planning / policy groups for each election, each with slightly differing remits but substantially the same membership.

The Local Government and Communities Committee Report on Elections 2007

66. The Committee published its report 7 into the 2007 elections in June 2008 and the report was debated in Parliament 8 on 9 October 2008. The Committee recognised that greater co-ordination is needed across the administration of elections and concluded that having a single CRO for Scotland would provide one means of addressing the issue.

67. The Committee drew attention to the fact that the Chief Electoral Officer for Northern Ireland was the electoral registration officer and Returning Officer for all 18 Parliamentary constituencies in Northern Ireland. He is also the Returning Officer for elections to the Northern Ireland Assembly and for elections to the 26 district councils in Northern Ireland and European elections. This is a well established model, for which Westminster retains full legislative responsibility, and appears to enjoy the confidence of all sections of the community in relation to the integrity of elections.

68. The Committee thought that if a CRO was to be established, the Government should consult local authorities and Returning Officers on how such a post would work with existing Returning Officers and on whether there is a need for full time Returning Officers in local authorities. We would welcome views on this.

69. The Committee recommended further investigation of the Northern Ireland model. The Northern Ireland Model is referred to above. We are also aware that there is a formal CRO model in place in Canada. But Northern Ireland and Canada have different set ups and so the models might not work here.

The Scottish Government view

70. The Scottish Government believes that an integrated approach to management, accountability and legislation would provide the Scottish people with the best reassurance that the problems identified by Gould would not recur. It would provide the most practical way of running future parliamentary and local elections.

71. We have said we will review the scope and range of tasks of Returning Officers in the context of the proposed establishment of a CRO post and the responsibilities that would be assumed by the CRO. We would welcome views on this.

72. It is vital that there are clear lines of accountability and responsibility for running elections, and a CRO could help to address this issue. We need a coherent and unified organisation of elections based in Scotland. It must be clearly accountable to Scottish Ministers and to Parliament. As mentioned above, we believe that the CRO's jurisdiction should ideally extend over all elections held in Scotland but we recognise that this would require the co-operation of the UK Government

73. It is right that the Scottish Parliament should set the legislative framework for elections but Parliament's involvement cannot end there. It is right that we should respect and safeguard the independence of local election Returning Officers, registration officers and others who play a vital role in ensuring that elections are run properly. The challenge is to develop proposals which separate legislative and operational or administrative responsibilities without allowing politicians or electoral professionals to abdicate responsibility for the other side of the equation.

74. The status quo is not an option. We appreciate the work that electoral professionals do to keep the election system running but everyone since Ron Gould has agreed that the current situation is fragmented, cluttered and confused.

75. We need to develop a system that is right for Scotland. We can look at models from elsewhere but we need to remember that these were designed for different countries with different traditions.

76. We need to consider whether it is worthwhile to introduce a CRO for Scotland if he or she would only be responsible for local government elections. A general view seems to be emerging among those involved in running elections in Scotland that any future structure for managing elections would be more effective if it covered all elections. The Scottish Government was encouraged earlier in the year that the, then, Secretary of State for Scotland acknowledged the need to ensure a consistent approach across elections in the potential role of a CRO. He said in his statement to the Westminster Parliament on 24 June 2008 that the Westminster Parliament should work closely with the Scottish Government and others to examine this in more detail.

77. The UK Government is considering its response to the Electoral Commission's report on the future of electoral administration in Scotland published in August of this year. In the meantime the Scotland Office has agreed that the Elections Steering Group (now titled interim Elections Management Board) should be reconvened, initially to oversee the preparations for the European Elections 2009. The Scotland Office has said that it is committed to working with the Scottish Government and the Electoral Commission on the right long term arrangement for the coordination of elections planning in Scotland. In the meantime, the Scotland Office has given its support for the Management Board until 2011.

Principles

78. In concluding this discussion of the merits of a CRO we have decided to focus on a small number of principles rather than propose a specific, detailed model. There are relative advantages and disadvantages in the various approaches to improving electoral administration in Scotland described above. We would like to use the opportunity afforded by this consultation to seek the views of others on the best approach for Scotland. That said, the Scottish Government preferred option would include the following elements:

Clear and open appointment process

  • It is important for clarity, accountability and to re-iterate the importance of the post that there should be an open and fair process for appointment. The process for such an appointment needs to be considered in the light of the competing arguments set out above.

Functions as recommended by Gould

  • Ron Gould identified the bulk of the tasks to be undertaken by a CRO. These are discussed above and there would seem to be widespread agreement that, if the concept of CRO is accepted, the functions to be carried out are generally accepted.
  • Consideration of the functions to be given to the CRO will need to take account of the implications for other organisations and post holders, including Returning Officers and the Electoral Commission.

Authority to give directions to Returning Officers in certain identified and agreed areas where consistency is vital.

  • The relationship between CRO and Returning Officers and other relevant parties is vital to the success of the CRO. The success of the role will depend on the ability to direct where necessary - even if the need to use the power does not often arise.

Regular meetings with Ministers

  • Regular meetings between the Chief Returning Officer and Ministers will allow discussion of the practical issues arising from the work of the CRO and their implications for the implementation of electoral legislation. The meetings would form part of a regular dialogue and exchange of views and would benefit both the CRO and Ministers in providing context to the work of the electoral administrators and real world evidence for the development of policy and legislation.

Reports to Parliament or Parliamentary Committee

  • It will be important to have some form of formal reporting process. Reporting in the process does not imply line management or direction but is designed to allow an effective exchange of views based on reliable and accurate information.

QUESTIONS FOR CONSIDERATION

Do we need a Chief Returning Officer for Scotland?

Should the post be co-ordinator or director?

What reporting mechanisms should be put in place?

How far should the concept of Independence for post holder go?

What arrangements should be put in place for the accountability of the post holder?

What role should there be for Ministers and Parliament?

How should a CRO be appointed?

How should the post be financed and supported?

HOW TO RESPOND

Please submit your response together with a completed Respondent Information Form below by 12.00pm Friday 20 March 2009 to:

george.macpherson@scotland.gsi.gov.uk
or:
George Macpherson
Referendum and Elections Division

Scottish Government
Area G-A North
Victoria Quay
Edinburgh
EH6 6QQ


The Scottish Government Consultation Process

Consultation is an essential and important aspect of Scottish Government working methods. Given the wide-ranging areas of work of the Scottish Government, there are many varied types of consultation. However, in general, Scottish Government consultation exercises aim to provide opportunities for all those who wish to express their opinions on a proposed area of work to do so in ways which will inform and enhance that work.

The Scottish Government encourages consultation that is thorough, effective and appropriate to the issue under consideration and the nature of the target audience. Consultation exercises take account of a wide range of factors, and no two exercises are likely to be the same.

Typically Scottish Government consultations involve a written paper inviting answers to specific questions or more general views about the material presented. Written papers are distributed to organisations and individuals with an interest in the issue, and they are also placed on the Scottish Government web site enabling a wider audience to access the paper and submit their responses. Consultation exercises may also involve seeking views in a number of different ways, such as through public meetings, focus groups or questionnaire exercises.

Copies of all the written responses received to a consultation exercise (except those where the individual or organisation requested confidentiality) are placed in the Scottish Government library at Saughton House, Edinburgh (K Spur, Saughton House, Broomhouse Drive, Edinburgh, EH11 3XD, telephone 0131 244 4565).

All Scottish Government consultation papers and related publications ( e.g., analysis of response reports) can be accessed at: Scottish Government consultations ( http://www.scotland.gov.uk/consultations )

The views and suggestions detailed in consultation responses are analysed and used as part of the decision making process, along with a range of other available information and evidence. Depending on the nature of the consultation exercise the responses received may:

  • indicate the need for policy development or review
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  • help decisions to be made between alternative policy proposals
  • be used to finalise legislation before it is implemented

Final decisions on the issues under consideration will also take account of a range of other factors, including other available information and research evidence.

While details of particular circumstances described in a response to a consultation exercise may usefully inform the policy process, consultation exercises cannot address individual concerns and comments, which should be directed to the relevant public body.

Respondent Information Fortm