CORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 1608-i

House of COMMONS

Oral EVIDENCE

TAKEN BEFORE the

Scottish Affairs Committee

THE REFERENDUM ON SEPARATION FOR SCOTLAND

wednesday 2 november 2011

john mccormick, andy o’neill and ANDREW SCALLAN

Evidence heard in Public Questions 1- 124

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Oral Evidence

Taken before the Scottish Affairs Committee

on Wednesday 2 November 2011

Members present:

Mr Ian Davidson (Chair)

Fiona Bruce

Jim McGovern

Iain McKenzie

Graeme Morrice

Mr Alan Reid

Lindsay Roy

________________

Examination of Witnesses

Witnesses: John McCormick, Electoral Commissioner for Scotland, Electoral Commission, Andy O’Neill, Head of Office, Electoral Commission, and Andrew Scallan, Director of Electoral Administration, Electoral Commission, gave evidence.

Q1 Chair: May I welcome you to this meeting of the Scottish Affairs Select Committee with the Electoral Commission? We have quite a lot of questions we want to ask about what happened in relation to the joint referendum and elections, but there are also a number of points we want to look at going forward. Perhaps we can speed through the earlier part of the agenda more quickly to leave time for some of the other questions that might take up a little time towards the end. Could you start off, John, by introducing yourself and your colleagues and telling us who you are and what you do?

John McCormick: Thank you very much, Chair. I am John McCormick, the Electoral Commissioner, Member of the UK Electoral Commission with special responsibility for matters in Scotland. My colleagues here are Andy O’Neill, who is the Head of the Commission’s Office in Scotland, and Andrew Scallan, the Director of Electoral Administration for the Commission.

Q2 Lindsay Roy: Good afternoon, gentlemen. To help set the context for this session, can you tell us why the Electoral Commission was formed and what specifically its roles are in relation to the referendums?

John McCormick: The Commission was created in 2000 and set up working in 2001. It had special responsibilities under the Westminster Act for referendums that are called by the Westminster Parliament. That relates to public awareness campaigns, ensuring that the campaigns are run by an independent neutral body with transparency of funding, as for elections. They are also charged with the process of establishing a rigorous testing process for any question that is proposed for a referendum to ensure that the question that is put to the voters is neutral, impartial and does not incline the voter to one side or the other. It also gives us a responsibility for reporting on that referendum. Have I covered everything, Andrew?

Andrew Scallan: The only other thing to add would be the administration of the referendum as well as the chief counting officer.

Q3 Lindsay Roy: Can you clarify how people are selected to be on the Commission?

John McCormick: I take it you mean to be Commissioners. We are approved by Parliament; it is a royal appointment endorsed by Her Majesty. We have had two new Commissioners approved by Parliament this week.

Q4 Lindsay Roy: Am I right that there should be no overt political connection over a period of time prior to your appointment?

John McCormick: When I was appointed to the Commission three years ago I had to demonstrate my political impartiality and neutrality and was questioned on that. We were then a sixperson board of the Commission. Since then, of course, as Members will know, we have four new Commissioners nominated by the political parties. The way we do our business ensures that in any meeting the majority of people who are present taking decisions are those who have been appointed as impartial Commissioners. We have patently benefited in the last 18 months from having round the table members of political parties, Members of this House and other Houses who have brought with them to their deliberations the experience of what it is like to be an active politician or a party administrator. That has enhanced our understanding of the political process and made us more effective.

Q5 Lindsay Roy: You have some key players who are expert witnesses on occasion where you would seek advice.

John McCormick: They are full members of the board, who take full part in all our discussions, and that helps those discussions be better informed. It follows that the rule for good regulators is that you should always have members on your board who have experience of the area you are regulating. We might have been appointed as politically impartial, but it is certainly strengthened by having people who have been involved in politics.

Q6 Lindsay Roy: But you go beyond that to seek advice from expert witnesses on occasions.

John McCormick: Indeed.

Q7 Lindsay Roy: Have there been any referendums in the UK since you were formed in 2000 where you have not been directly involved?

John McCormick: There are only three referendums that the Commission has run: the 2004 referendum in the north-east of England, the March referendum this year on lawmaking powers for the Assembly in Wales, and the referendum in May on the voting system for the Parliament here.

Q8 Lindsay Roy: You have been involved in all of them and in the same capacity.

John McCormick: In the same capacity.

Andrew Scallan: The only thing to add would be any referendums held within each local authority area, in which case we are not involved.

Q9 Lindsay Roy: At national and subnational levels, in terms of devolved Administrations, you have been involved.

John McCormick: No, sorry, Chair. I have enumerated the three referendums which were directly run by the Commission. Those are the three for which the Commission has been responsible.

Q10 Lindsay Roy: Can you tell us how you assess your performance? What kind of benchmarks of success have you identified?

John McCormick: We have fairly rigorous standards that we adhere to in terms of how we do our work. In our annual report and corporate plan we outline our strategic, shortterm and longterm objectives and present it for interrogation here in Parliament. The Speaker’s Committee is the committee to which we are responsible in terms of the administration of the Commission, fulfilling our objectives and our corporate plan. My colleague Andrew goes through that process directly.

Andrew Scallan: Yes. In relation to a particular referendum, we produce a report, as we are required to do by statute, on our performance, and all the evidence that we gather in forming our report is available for inspection. We have an unusual situation in that we report on our own performance. Our report sets out the judgments that have been made about our performance.

Q11 Lindsay Roy: But you believe your selfevaluation has been robust and you have met the performance indicators. There has been no major criticism of the work of the Electoral Commission. Would that be right?

Andrew Scallan: In relation to the administration of the referendums, that would be right, yes.

Lindsay Roy: Thank you very much. That is very helpful.

Q12 Iain McKenzie: Before I get on to my questions, I would like to ask a supplementary on the letter that was submitted on 1 November. It is one of your bullet points, and it goes back to your testing of any question. It says that this is a careful and independent assessment. Can you tell us briefly the criteria of this independent assessment?

John McCormick: One of the key principles underpinning any referendum is that the question must be unambiguous, clear and not inclining the voter to one side or the other. In our experience of referendums, we undergo a rigorous testing process, which involves user testing, and then discussing the question that is proposed in the legislation with plain-language specialists, those who are concerned with issues of accessibility and also with campaigners and those who have a particular interest in that referendum. That process takes about 10 weeks, in our experience, to be completed. It is a fairly rigorous process. It ensures that at the end a question goes back to Parliament. In the Welsh referendum this year and the voting referendum in May this year, the revised questions were both accepted as the questions that finally went into the referendum.

Q13 Iain McKenzie: You probably touched upon this in your introductions, but could you clarify for the Committee the nature and extent of your role in Scotland? For which elections do you have responsibility and for which do you not?

John McCormick: The Act that set us up gave us responsibility for the UK parliamentary election, the European election and the Scottish Parliament elections. We did not have a statutory right under that Act, as established in 2000, for the local elections in Scotland, but I am pleased to say the recent Act that went through the Scottish Parliament has given us a statutory role for the local elections beginning next year. We did advise on the last two sets of local elections. Our position is that, if we are asked to advise, help and support, we do so. We did that on an invitation basis on the last two occasions, but for the coming elections we are involved on a statutory basis. The same piece of legislation gave a statutory role in those elections for the recently constituted Electoral Management Board, which we are very pleased to see is now statutory. Under that Act, the Convener of the Electoral Management Board in Scotland now has a statutory power of direction over the returning officers for the local elections next year. That is something which we hope will be extended to the Electoral Management Board for all the other elections.

Q14 Iain McKenzie: Can you describe for us your present relationship with the Secretary of State for Scotland and the First Minister and how that may change should the Scotland Bill be enacted?

John McCormick: We have good working relationships, I am glad to say, with all political parties, the Parliaments and those who hold posts of responsibility in Governments and Parliaments. I do not envisage any changes. Could you elaborate on that question?

Q15 Chair: To whom do you report?

John McCormick: We report to the Speaker’s Committee of the House of Commons because we were established by the 2000 Act, which was an Act of this Parliament.

Q16 Chair: You do not have a direct reporting line either to the Secretary of State for Scotland or the First Minister.

John McCormick: No, but we meet with the Secretary of State and officials and members of the Scottish Government. Next year will have our reporting to the Local Government Committee of the Scottish Parliament because of our statutory role in relation to local government elections.

Q17 Chair: In each case, it is a reporting to the appropriate level of the Parliament, either in Scotland or here, rather than either the Secretary of State or the First Minister.

John McCormick: Yes.

Chair: I wanted to be clear on that.

Q18 Iain McKenzie: Your report on the elections to the Scottish Parliament notes that many of the postal votes that were spoiled appeared to be so through error rather than fraud. What changes should be put in place to reduce the number of errors in the future?

John McCormick: That is something that concerns us. We have put recommendations to the Government-and I am glad now that the UK Government have taken them up-that we should have a review of the postal votes. We think many of the invalid postal votes were the result of mistakes. It is pretty clear, and returning officers have said this to us across Scotland, that, if there are two people living in the same house, sometimes they put the wrong signature on the wrong form. Sometimes one of the forms has not been sent back. Sometimes the date of birth and the date of the election have been mistaken so they have put the wrong date in. They are honest mistakes that have led to the votes being invalid under the legislation, and the returning officers have conveyed to us that they are very concerned about this issue. I am glad to say we are having a review with the Government and there are two areas where we think we can make an improvement. If the returning officers can give feedback on the rejected votes, which they are not allowed to at the moment, so that the electoral registration officers can follow these up, and if there could be an opportunity for people to provide a fresh signature more frequently than they are able to do at the moment, that could help the process. These things are now under review with the UK Government.

Andy O'Neill: Yes. Personal identifiers were introduced in 2007 in Scotland. We found early on that for the vast majority of postal votes which do not get into the count the reason is the lack of a signature or correct date of birth. We have been calling for UK Governments since 2007 to allow electoral registration officers to refresh the signature in case people are using a different signature. Young people’s signatures change; old people sometimes forget which signature they used or their signature has deteriorated. We are also trying to ensure that people use the waiver provisions. If you cannot write your signature properly, you can get a waiver from the electoral registration officers so that you simply have to give your date of birth. That is something which at the moment is not as widely known and publicised as it could be and we think that would help.

Q19 Iain McKenzie: Do you see spoilt postal votes as being replicated across the UK or was it particularly relevant to Scotland’s elections?

Andy O'Neill: The number of postal votes not getting into the count proper went up across the UK in general. In Scotland, it went up from 4.2% to 5.9%, from memory. That was mirrored elsewhere in the UK, so it is not a particularly Scottish issue. I do not know if you want to add anything in terms of the UK, Andrew.

Andrew Scallan: The only thing to add is that one of the things we have also said, in addition to those issues where voters have made mistakes, is that everybody should work to improve the stationery that people fill in. There are things we want to see consistent. For example, where the date of birth is required, "19" should appear so that people do not get misled into putting the date of signing in. There are some small things to change and there should just be an improvement in the quality of the materials that are sent out to ensure they are as clear as possible.

Q20 Chair: I am not quite clear if I picked this up wrongly, Mr McCormick, but I thought you said that somebody was not allowed to feed back in to the return. Can you clarify that point for us?

Andrew Scallan: The electoral registration officer is responsible for compiling the register and taking receipt of postal vote applications. All the material around the postal vote is held by the electoral registration officer. They are all opened by the returning officer, who is a separate person, and at the moment, after the election, the returning officer seals everything in envelopes. It is all part of maintaining the secrecy of the ballot. They are never opened, so you cannot take that information and pass it on. Take the example that John gave of mismatches. With two Johnsons in a house, Jack and Jenny, you can work out that they have made a mistake, but there is nothing you can do to go back to the elector and say, "You have made a mistake. Bear this in mind in the future." It is about looking at materials after the election and being able to make sure that the right person can act on it.

John McCormick: And sharing that information with the Registration Officer.

Q21 Fiona Bruce: Good afternoon, gentlemen. I would like to ask you about the timing of counts, whether it is the same night or the next day. Am I right that at present it is up to the individual returning officers-yes-but you are producing an issues paper this month? Could you tell us what some of the reasons are for changing to the next day and having the count then as opposed to on the night, which is obviously more prevalent now?

Andrew Scallan: Before the last general election there were a lot of issues to do with the timing of the count and we sent out a letter to returning officers in September of the previous year explaining the issues that might properly be taken into account. There are huge variations in logistics associated with any count. The members of the Committee will appreciate some of the logistical issues about geography and sometimes in relation to combination that have to be factored in. The issues paper that we will put out will rehearse some of those issues, give as clear a picture as possible and then look at a way of moving it forward. I should say that the only count that is set in time is the European Parliament count. There is a specified time for the start of the count process as distinct from verification. Nine o’clock on a Sunday evening at the moment is what, historically, we have been used to. Everything else is "as soon as practicable", based on the individual acting returning officer’s decision.

Q22 Fiona Bruce: Do you think there are particular reasons in Scotland for addressing this issue, such as distance?

Andrew Scallan: There are particular challenges, as in all the nations, that raise those issues, with particular challenges in relation to some of the journeys that may involve crossing water and using helicopters. So there are issues, but they are not unique to Scotland. The issues can be replicated across the country.

Q23 Fiona Bruce: I want to turn to voter registration. A lot of people hear just too late that they need to register. About 4,000 people at the election missed the deadline. Have you any thoughts on how we can improve voter registration?

John McCormick: We are delighted, as a Commission, that the period for registration is now up to 11 days before the event. The previous time of six weeks was much too long and we are very pleased that that change has been brought in. That has certainly led to an improvement in the numbers of those registered for the recent election since it came in. There is a balance to be struck between the security of the register, allowing people the right to be registered and encouraging them to register. Certainly, the Commission runs public awareness campaigns at the outset of any election campaign to encourage registration, trying to make sure that the registration deadline is in the public consciousness. The balance between the security and the right to register is something that we hope the public awareness campaign at least brings home to people, but it is pretty clear that some people do not think of registering until a couple of days before. That would be fair, Andrew, wouldn’t it? There are always some people who miss it because they don’t get caught up in the election campaign as early as we do.

Andy O'Neill: In some respects it is a lifestyle choice in terms of the way people do things. If there is an election coming up, they say, "I want to vote. I need to register." That is the way some people lead their lives. In the period between the six weeks, which was the old cut-off for electoral registration, and the 11day rule in April, 25,500 people in Scotland registered to vote. That was quite useful; it is over 0.5% of the Scottish electorate. There were approximately 4,500 people trying to register either by contacting the electoral registration officer or going into a polling station on the day and saying, "I would like to vote," when, obviously, it is too late. We believe the 11day rule is still a useful tool to ensure that people can register if they want to vote.

Andrew Scallan: One of the lessons we also learned from the referendum is that the early issue of poll cards acts as a trigger. People may get a poll card for people who are no longer there, which raises the issue for them. The early issue of poll cards acts as a trigger because the deadlines and the dates are set out on the poll cards so that people can then adjust their position on the register.

Q24 Fiona Bruce: At present you do not have any plans to review the 11day period, perhaps in light of increased technology which might assist.

John McCormick: We always like to be sensitive to the opportunity, and there are ways we can balance the two principles of security of the register and encouraging people to register. We are always open to take account of changes such as technological changes.

Q25 Chair: Can I go back one stage to the question of timing and whether or not you have made any recommendations about re-counts, in particular the question of whether the length of count and the hour of the night determine whether or not re-counts are held? In the Scottish elections, there was one seat in Glasgow won or lost by seven votes. Part of the argument against having a re-count was that it was late at night or early in the morning. That does not seem to me to be the strongest of arguments against a re-count. Do you have any views on how that circumstance could have been improved?

Andrew Scallan: We do not give any particular advice about what might happen at any particular time of the day or night or how many hours people might have worked for. What we talk about always in how counts should be conducted are principles to do with transparency, understanding and acceptance of the decision. It has to be down to the particular local circumstances. As a former deputy returning officer in a local authority, I find it hard to imagine that you would not at some stage make a decision that says, "We will stop now", because everyone is too tired or simply because they are exhausted. There will be examples where that might be relevant. You would make sure that everyone is satisfied that all the materials are sealed up in a way that gives everyone confidence that nothing can go missing and then resume at a time when there is the opportunity to do it properly and after a period of rest. That would be an opportunity for a returning officer to conduct the count in circumstances in which everyone felt confident that the right decisions were being made on every ballot paper.

Q26 Chair: I hear that. The returning officer in Glasgow-which is where this occurred-had he or she wished, could have stopped the count and held a re-count at a later stage, having had everything sealed up. There was no obligation on them to draw the matter to a close there and then. Essentially, those who were losing by seven wanted to have a full re-count and the returning officer refused to do so, despite previous block counts having come out with different tallies. Is there anything stronger than simply an indication from you to the returning officers that would oblige them under certain circumstances to hold a re-count?

John McCormick: It is within the discretion of the returning officer.

Andrew Scallan: It is within the discretion of the returning officer. I was answering the question about tiredness and exhaustion, and there was a separate issue about acceptance of the decision. There are two separate issues there, and it will be in all the circumstances because there is any number of issues. One of the things on which we are working with people is being clear what we mean by a re-count. You mentioned bundle checking, and some people call it bundle flicking. There are all sorts of things which are something less than taking all the bands or paper clips off and redistributing everything-the start of the second stage. It has been very clear that there is an acceptance, an understanding of the processes, so that everyone is familiar with them and there is confidence in it.

As to the seven in your example-I do not know the particular details of the Glasgow issue-it is very often the case that there are tight or small majorities, but they accept it because everyone is satisfied that the conduct of the count has been done in a way that is very transparent, everyone’s counting agent has been able to see what is going on, people have been able to see how the bundles are accumulating and they are confident of what has gone on. I do not know the particular circumstances of the case you mentioned.

Q27 Chair: In these circumstances there was no confidence. I remember being there as one of the observers and I spotted a number of votes that had been wrongly allocated. That was then balanced by somebody else having spotted some others that had been wrongly allocated the other way round, and the result ended up in a very similar way, but there had been quite a lot of movement. One of the groups certainly did not accept the result, but the timing that we had reached in the early hours of the morning was used as an excuse to refuse a full ballot. But you are saying there is nothing in your guidelines that would have stopped that going ahead and it is entirely up to the individual returning officers.

Andrew Scallan: Yes, because our guidelines are guidelines or our guidance is guidance. The law gives the responsibility to the returning officer to make those decisions.

Q28 Iain McKenzie: I had always assumed there was a number under which the returning officer had to compulsorily go through the process of a re-count, if requested. What you are saying is that it is entirely up to him or her, regardless of the number.

Andrew Scallan: There is the opportunity for candidates to request a re-count; the returning officer can consider the request and refuse it. A re-count in an election with a deposit, for example, may not just be about who has won. It may be about someone’s position in relation to the percentage threshold for retaining a deposit, for example.

Q29 Lindsay Roy: Do you think it is fair and transparent, when you are dealing with a number like 7, 5 or 3, that the returning officer has the power to say no to a re-count even when there is an objection?

Andrew Scallan: It goes back to the principles and it depends on the reasonableness. I do not know how many times they may have found seven. It will depend, in all the circumstances, on the issue. It is very difficult to come up with hard rules because seven, as a majority, out of an election that has involved tens of thousands of voters is different from seven in a majority of a lot less than tens of thousands. You are looking across the whole range of elections.

Lindsay Roy: My understanding is that this was a Scottish parliamentary seat.

Chair: It was the Scottish Parliament, yes.

Q30 Lindsay Roy: It was a considerable number of votes.

Andrew Scallan: Yes, but in all the circumstances it might be that people are concerned about the process. A majority of 700 might lead someone to be concerned, whereas, if everyone is satisfied with the process, a majority of seven might be acceptable. It is very difficult to come up with a figure which says, "This should automatically trigger a re-count," or, "This figure should automatically trigger three re-counts until you get the same figure."

Q31 Lindsay Roy: Does the guidance need to be strengthened?

Andy O'Neill: One of the things on which we also advise returning officers with regard to re-counts is the briefings to which you all get invited by the returning officers as candidates. We encourage them to explain what they will do if the situation is tight, what they will be looking to, when they will give a re-count, when they will not and when they will do a bundle check. If there is information before the event about how they are going to act, you will be aware of it and that helps the process of trying to gain acceptance of the result.

Chair: To be fair, there was a briefing beforehand, but it was delightfully vague about what might happen in unforeseen circumstances; otherwise we would not have had the discussion at the time where people felt the system had been unfair. Anyway, we have covered that.

Q32 Jim McGovern: Still on that subject, is it entirely at the discretion of the electoral returning officer?

John McCormick: It is the returning officer’s responsibility.

Q33 Jim McGovern: It is not down to the candidate. The candidate can ask for a re-count but the electoral returning officer can say no.

John McCormick: Yes.

Q34 Graeme Morrice: I understand that it is clearly down to the discretion of the returning officer in the particular election, and you are saying, however, there is guidance and it is down to the individual returning officer to interpret that guidance. I can understand when it comes to paper counting of ballots that it could be a full count, a partial count, a bundle count or whatever. Could you maybe touch on electronic voting? Obviously, in 2007, in the Scottish local government elections, because of the STV system, there was electronic voting, and it would be the case in May next year as well. Are you aware of any re-counts? The Chair obviously made reference to a particular situation in Scottish parliamentary elections in Glasgow where there was a majority of seven. There was a particular instance in West Lothian Council where there was an unsuccessful candidate in a threemember ward and the fourth candidate lost by one vote. Unfortunately, no one knew he had lost by one vote until the result had been officially announced because none of the candidates, the election agents or counting agents, were allowed to be anywhere near the counters. Also, some of the screens that were providing uptodate electronic information on how the count was going had broken down. That was a bad example of how somebody lost by one vote but did not know until it was officially announced. What opportunities would there be in that situation for candidates, election agents and counting agents to be involved in the process at a much earlier level, to know what was happening and to ask for a re-count? How would a re-count happen in an electronic voting situation?

Andy O'Neill: The principles of counting manually and electronically are essentially the same in terms of advising the candidates and agents of what you are going to do on the night if the count is close and so on. The mechanism whereby you then total the votes, in one sense, is irrelevant. You would have to ask the returning officers and the Scottish Government, who are currently developing the contract for the ecounting provider for the 2012 local government elections. But you could rescan all of the ballot papers; obviously, it would take time. You can, and could in 2007, get access to all the ballot papers that are in the count centre. At the end of the day, the returning officer can do what he or she wants to do. You could theoretically, I suppose, decide not to use the ecounting and manually count them. But the principles involved in encouraging the returning officer to explain what they are going to do if the count is tight, such as, "Will there be a bundle check? Will you do a rescan?" and so on, and the principles involved in encouraging people to understand what it is to get the acceptance of the result remain the same. The fact you are scanning them as opposed to counting with rubber fingers is irrelevant.

Q35 Chair: Can I turn to the AV referendum? If I remember correctly, you were indicating that you wanted to have six months’ notice of the question and other related matters in order that the referendum can be planned properly. As it worked out, you only got four months. Did that cause major difficulties or was the system able to be worked with on four months’ notice?

John McCormick: The point, before I ask my colleagues to comment on it, was that the board-the Commissioners-spent a lot of time discussing this. When the Bill was announced, the Commission made it clear that we expected six months’ notice for the rules and the conduct of the referendum to be clear enough for planning to begin. Six months is important to us because the planning has to be undertaken for those who are administering the referendum. We put out a statement on 6 November to say that we felt the rules were clear enough so that the planning could begin and the referendum could go ahead. The Bill had not received Royal Assent at that stage, as you well know, and, therefore, the final period of the formal Bill being enacted was shorter than that and shorter than we would have wanted. Ideally, we say the six months is what should happen. In this case we felt it was clear enough to allow it to go ahead, but there were certain issues we have learned from that. As you have indicated in your question, we have raised that in our referendum report, about the planning cycle for any referendum. Andrew could add some detail.

Andrew Scallan: The important thing about the legislation for the voting system referendum was that the primary legislation contained a lot of the rules for the election that you find in secondary legislation. In terms of the conduct of the elections and the combination rules, everything was embedded in the one piece of legislation. That was available and had been through the Commons at the beginning of November. As chief counting officer, Jenny Watson then proceeded to talk to electoral administrators and returning officers who were responsible for the administration of it. At the same time we were able to look at the issues on public awareness that were our responsibility and to start preparing for designation of the designated organisations, which are a key feature of a referendum held under the Political Parties, Elections and Referendums Act-which I may call PPERA now. The point we are making about timing is that it is not only about the administration from the electoral administration point of view, but, in a campaign that requires designation, campaign organisations need to be created and have time to go through the designation process which is set out in the legislation, and then be able to campaign so that voters can go to the poll with an understanding of what they are being asked to make a choice about.

Q36 Chair: Originally, you said that you wanted to have legislation in place six months before, but now, in a sense, you are saying that you need to have most of the legislation notified six months before. We want to clarify whether some guidance is needed on whether or not somebody who wanted to have a referendum could turn round and say, "We are having one next Monday or next Tuesday", or, "We will have one a month from now, a week from now or three months from now." I am trying to identify from you what sort of time scale is appropriate, because originally you did say six months. As it turned out, you only got everything spelt out four months in advance, notwithstanding the fact that some of it had been previously trailed. I am looking, therefore, for guidance about what is a reasonable figure for a time span.

John McCormick: We are very clear, Chair, that it is a matter for Parliament to decide when a referendum is held and the period of time that elapses. We comment on best practice in what we have described in the run-up to the last referendum and in our report we say that we believe our best practice is 24 to 28 weeks in advance of the referendum so that planning can take account of lastminute changes or whatever. The report that we produced on this year’s referendum showed that the referendum was well conducted. The credit for that, of course, goes to the individual returning officers. We are talking about best practice and give our advice based on what we would see as an ideal set of circumstances and timetable. We list that in our referendum report. But it is a matter for Parliament how much time in the end elapses.

Q37 Chair: Are you saying that, irrespective of the notice, you can make it work? Surely not, because you would not be able to run it for next Monday. I am trying to clarify what sort of space you would need.

Andrew Scallan: The important thing is that our comments are all about the framework that exists under PPERA and the nature of the referendum that I described, which is about designated organisations. That is the framework that we are used to with referendums. It is possible there is a different type of referendum framework. However, the time we would need and the recommendations that we have made in our report about 28 weeks are not about the administration in the sense of how returning officers conduct themselves. It is about the nature of the campaign and how people enjoin with that. In terms of a minimum period, it is entirely possible to track back from any chosen date and think through the mechanics of what needs to happen. If designated organisations are not part of a referendum, then there are different sets of considerations to be taken into account. It is difficult to say, "Here is a figure," because a referendum under PPERA is one thing, and there may be another framework for a referendum.

Q38 Chair: I accept that. It is entirely possible to have a much less rigorous referendum-less well policed, less adequate and less balanced-and have it done in a shorter period. You could have one by next Monday if it was slipshod and shabby.

Andrew Scallan: If it was by next Monday, I do not think the Electoral Commission would be very keen to be involved in it. Voters need to understand.

Q39 Chair: But you might not be asked, of course.

Andrew Scallan: The principle we go back to is whether voters understand what they are being asked to engage in. Then there is an issue about time for everyone in that consideration.

Chair: Thank you. We will move on.

Q40 Graeme Morrice: I wanted to touch on the Electoral Management Board. When the Committee met the Electoral Commission last year, there was some talk about that and how it would develop. How is that developing in terms of its future role? How successful has the work been that it has done to date in improving the situation in terms of voter participation in elections in Scotland?

John McCormick: I am delighted to have this question. The Electoral Management Board played a key role in this year’s Scottish Parliament elections. The Convener, now confirmed as Mary Pitcaithly, who was the acting Convener, the rest of the board and the returning officers throughout Scotland deserve a lot of credit for the work that was done. We recommended setting up an Electoral Management Board uniquely in Scotland. It is very much a Scottish solution for Scottish issues. It works very well because of the nature of Scotland and the returning officers, working together, have their representatives on the board as have the electoral registration officers. My colleague here, Andy O’Neill, attends meetings, as do civil servants from Westminster, the Scotland Office and the Scottish Government. It is a very good forum for coordinating electoral activity in Scotland and we are delighted that the Scottish Government formally gave the Convener the power of direction for the local elections and at the same time gave the Commission its formal role in local elections for next year.

As I said at the outset, we would like that power of direction to be extended for the Westminster elections; its enactment was supported by the last Government and the last Secretary of State for Scotland. The Convener will have that power of direction for the European elections because of the legislation. It would be nice to see it extended across the board. But, in the consensual nature of Scotland and elections, the Board will run as though it had that power for the other elections, and that is with the consensus of the registration office community and the electoral registration officers’ community as well. It has made a great start, and now we look forward to working with them to build on that to see how we can develop its role to enhance and communicate to the voters of Scotland what it does so that people have a clear understanding and a way of improving the experience for the voters. They introduced a number of new changes this time and there is scope for building on that in a strategic sense to look further ahead and see how the Board might develop.

Q41 Graeme Morrice: Could I ask a supplementary, Chairman? That was a very full explanation. What suggestion would you have for a particular improvement that you would like to see take place?

John McCormick: Perhaps Andy would like to come in on that as he sits on board meetings.

Andy O'Neill: One of the interesting things over the next eight months for the Electoral Management Board, as it beds down in a statutory sense, will be how it deals with the local government elections. In a sense, it is the last legacy of the 2007 election issues-the Gould legacy, if you want to call it that. One of the things Gould said was that, "I would have blamed someone if I could have found someone to blame." In a sense, Mary Pitcaithly, the Elections Convener, is now that head of blame. She has to ensure that it all works because, presumably, people like you might want to ask her what occured if things go wrong.

Q42 Chair: Let me get this clear. It is not you that is to blame. You have never had the credit. Is that right?

Andy O'Neill: We have never been responsible for elections. We are responsible for giving guidance to the returning officer. We are not operationally responsible.

Graeme Morrice: Just blame Mary.

Andy O'Neill: My next comment is that the Commission, of course, is very keen to support the Electoral Management Board. It was one of our ideas, after all. We aim to do that in the next eight months through our performance standards regime where we are moving to a live monitoring process whereby we will get plans and risk registers. We will ask our returning officers if they have done certain things by certain times. We will share all that information with the Electoral Management Board and the Elections Convener so that she will be able to solve issues before they become issues because people will know what is happening.

Chair: We will move on to the report on the AV referendum, Graeme, where you were going to pick up on questions 10, 11 and 12, and so on.

Q43 Graeme Morrice: Yes, thank you, Chair. On pages 33 to 35 of the reports on the AV referendum you outline the potential risks of holding the election on the same day as other elections. Could you briefly outline those risks? Which one was the cause for the greatest concern and why?

John McCormick: On the Commission, we said pretty clearly at the outset, over a year ago, in discussing this that every example has to be looked at on its merits. We would never say you can or cannot do this. You have to look at it on a casebycase basis. We looked at it on that basis in May with the Scottish Parliament elections, the elections in other parts of the UK and the referendum taking place at the same time. One of the key areas for mitigating the risks was the formal combination of the elections. That, itself, enabled the running of the elections to be more smoothly achieved, made the administration itself easier and the communication to voters so much more simple. One of the key things for us and the lesson from the May events was the combination of both, in a legal sense, to enable the administration and the communication to be much simpler. But there were other advantages as well.

Andrew Scallan: The report sets out the whole range of risks. The report also demonstrates voter confusion, which was one of our biggest concerns. The combination was a significant issue to a different degree in different parts of the country. As John has said, it is about looking at every permutation of combination on its merits. The judgment we arrived at was that this combination would not cause too many problems. The evidence that we collected from voters about their understanding of the issues in front of them and their ability to complete the ballot paper the way they wanted to demonstrated that they were able to make those decisions.

Q44 Iain McKenzie: Do you think that the risks significantly multiply when we start mixing different voting systems together?

John McCormick: As I said, we like to stick to the principle of looking at and examining what there is. In 2007 there was a lot of misinformation about the local election system and the Scottish Parliament elections. There were a lot of dubious statements made about what caused the problems there; part of it was electronic. We would like to look at the two voting systems that people were looking at and see whether in fact it was possible. We would be very clear if we thought that was a risk that could not be overcome on the day by communication of good information. It is possible to communicate clear information about how to fill in ballot papers with two different voting systems. We would not like to rule it out and say that it could not happen. Our experience in recent years is that, if you can communicate clearly what is at stake and how to fill in the ballot papers, there is a fair chance of success. The percentage of people who said it was easy to fill in the ballot papers this time was high in Scotland; 97% of people said it was easy. We do a lot of postelection research to see if people were confused and if any issues came up that we had not foreseen. We are very satisfied with the results we got from that research in terms of the experience of voters in Scotland. It was pretty strong. It was quite encouraging this time.

Q45 Graeme Morrice: That certainly contrasts sharply with the experience in 2007. Presumably, very important lessons were learned as a result of combining the ballots, but also combining the ballot paper for the Scottish parliamentary election and, of course, this time round they were separated. Did people see that as a significant improvement? Presumably, on the basis of the outcomes and the satisfaction that you mentioned, I would assume so.

Andy O'Neill: You can in the sense that we asked a question during the weekend after the election, "How did you find filling in the Scottish Parliament ballot papers?", and 97% of people said it was easy. We and returning officers across Scotland spent four years working hard in terms of developing "Making your mark", which is a good practice design set of guidelines for things like ballot papers. All of this worked through into the event in the first week in May.

John McCormick: We are particularly satisfied that the number of votes rejected in the Scottish Parliament elections this time had reduced from around 4% the last time to 0.39% and 0.42% in the two ballots this time; it was one tenth of that. It was down to the communication of information on how to fill in the ballot paper, the separation of the elections and the ballot paper design. The Commission also had done a lot of work a couple of years ago on advice to returning officers and the electoral community about the election forms and election information design in a document called "Making your mark." A lot of the recommendations that were made there about layout information, how to construct and design voter information were put into practice in May and, we think, helped to get that result.

Q46 Graeme Morrice: What would be the advantages of having two different polls on the same day?

John McCormick: One advantage this year was a considerable saving of money in terms of bringing them together. Also, many people comment on the advantage of asking people to go to vote in two electoral events, as we would call them, on the same day, which may have a positive impact on turnout. There is a lot of academic research on that. There is some advantage in that for those who are maybe not as interested in elections and referendums as we are in encouraging them to take part in them.

Q47 Chair: Was there any evidence that the result in one spilled over into the other? It was suggested, for example, that people could take the opportunity to kick the Liberals twice, that those who wanted to kick them in the AV referendum also took the opportunity to kick them in the local government election and that it might not have been such a large swing against the Liberals in either of those had the other event not been taking place at the same time. Other examples can be quoted. You obviously were not able to conduct full tests separately, but is there any evidence at all that the influence of one result affected the other, because, clearly, that would affect how you looked at it?

Andrew Scallan: That is not the sort of research that we would undertake. There are academics, however, carrying out that type of work. I can let the Committee know where that research is being carried out.

Chair: That would be very helpful. There was a lot of speculation beforehand that having the two events on the one day might crossfertilise in a way that was unhelpful to some of the protagonists. But you are saying that you have no evidence for that. We can have a look at that in due course.

Q48 Jim McGovern: Does the Electoral Commission have any influence or say on what is on the ballot paper?

John McCormick: On the design of the ballot paper, yes. We give advice and guidance on that, yes.

Q49 Jim McGovern: If it says, for example, "Alex Salmond for First Minister," would you say whether that was good, bad or indifferent?

Graeme Morrice: It’s very bad.

Andy O'Neill: The rules relating to descriptions of party names on Scottish Parliament ballot papers are all in the Scottish Parliament Conduct Order; what you can and cannot have is prescribed. For a constituency ballot all you could have was the registered party name. For a regional list you could have the registered party name followed by one of the descriptions, if the parties so wished. One of the descriptions for the SNP was, "Alex Salmond for First Minister." They could have used that if they had wanted to.

Q50 Jim McGovern: That is perfectly fair and legal.

Andy O'Neill: It is a Conduct Order passed in Westminster Parliament.

Chair: That was perfectly legal. Whether or not it was fair on-

Jim McGovern: It was possibly immoral.

Andy O'Neill: We register the descriptions. They are there on our website to see, but the rules relating to how parties can describe themselves was passed in 2009 by the UK Parliament. Where we have influence is through the "Making your mark" guidance document on design of ballot papers where we encourage people to use the best practice guidance which we have produced and then go and test what they have mocked up. We encourage the Scotland Office, the Cabinet Office and the Scottish Government to go and test these things. For instance, the Scottish Government have already tested the ballot paper for the local government elections which they will use next May.

Q51 Chair: Can I float something else with you in terms of having two events on the same day? We know next year, for example, that we are going to have Scottish local government elections. If we wanted to have a referendum, say, on Calman, what sort of time scale would it be necessary for you to be given to be able to run those two things on the same day effectively? I understand your point about administration and, if the administration has been set up for the elections anyway, then there is also the issue about making people politically aware, but any decision to have a referendum on Calman would be accompanied presumably by its rejection by the Scottish Parliament and arguments back and forward. Therefore, there would be a heightened awareness of the issues around Calman so you would not necessarily be starting, as it were, from a standing start on something like that. Do you have a view on that combination?

Andrew Scallan: Referring to the answer I gave earlier about the timetable that is necessary-and our report talks about 28 weeks to make sure-assuming the PPERA framework is to be used, we think it should be extended. I could not tell you how many weeks it is until May.

Q52 Chair: Can I tease out the two elements of that? One is the element of administration, and presumably it would not require 26 to 28 weeks for separate administration for a referendum when you are already having elections. I understood the point you were making earlier on. The issue is the information for the electorate. You would not want to produce something entirely new that had not previously been the subject of political discussion. But for something that was the subject of live debate, in the way that the AV referendum and related matters were on a previous occasion and Calman could very well become, the period of discussion could to some extent overlap the 26 to 28 weeks without there necessarily having been notification of a referendum until nearer the date.

Andy O'Neill: You would also have to take into account campaigning issues in terms of the campaigners being able to be identified in designating lead organisations, which takes up to 12 weeks. You also have to identify in the legislation the regulated period for the spend by campaigners, which, under the PPERA framework, we argue should be 16 weeks. There is a host of issues which you have to look at and then develop into the legislation. That is why we argue that 28 weeks is the minimum period for when clarity is established so that we know how the administration is going to work and how the party electoral finance regulation will work.1

Q53 Chair: You did mention, I think, Mr McCormick, that, if Parliament decides, and it is up to Parliament to determine, you could make it work.

John McCormick: We would do our best to make it work. As I said earlier on, and my colleagues have emphasised, we are outlining the ideal timetable, but we are also very clear that we have to wait this time. We have had a referendum which was very successfully run in a shorter legal time span, but we had plenty of notice in terms of the six months’ intention. We gave that notice six months before; we felt we knew enough about it for the planning to begin. That is why we comment on legislative proposals that come forward and then we comment on them on a casebycase basis. I did not mean that as a glib answer or to hide behind it in any sense at all, but the set of circumstances at the time, the proposed questions, the nature of the referendum and the nature of the election with which it might be combined are all very important so that we can work through it and answer the question specifically in real time as to what we would advise would be the minimum period and the ideal period.

Q54 Mr Reid: Sticking with the combined area referendum and the Scottish Parliament election, do you do any analysis of what impact the media had on turnout and results of both the election and the referendum?

John McCormick: At the outset of the process of combination, speaking within the Scottish context, of course, some of us were concerned-and I was concerned-that the referendum might overpower the coverage of the Scottish Parliament elections. From the outset, the Commission made it clear that the elections should be counted first, in that that was what people’s livelihoods were connected with, their family lives and so on. The priority was to get the election results out first and then to count the referendum. That was our priority throughout. We were concerned that, with a UK campaign for the referendum, that might drown out the Scottish Parliament elections and the elections in other parts of the UK. Happily, that did not happen. It was the other way round. In Scotland, the media covered six stories on the Scottish Parliament elections to every one on the referendum. There was a 6:1 ratio. The ratio was similar in some parts of the United Kingdom but not as great as it was in Scotland. Also, at the same time, the parallel research showed that most people-79% of people-felt they had enough information on which to make their decisions on polling day. Those two things together gave us some satisfaction.

We had produced a public information booklet which was sent to every home in the country that outlined how to vote in the Scottish Parliament elections and how to vote in the referendum. We were quite pleased at the feedback we got on the success of that and backed it up with a public awareness campaign, radio, television and lot of local press activity-local papers across Scotland-of which you might have become aware. We are quite pleased that the research seemed to vindicate that. We also had quite a successful number of hits on our "About My Vote" website where we had some different characters to try to make the referendum and the Scottish Parliament elections process voter-friendly. We take some satisfaction from the combination of all those and using the website development more extensively than ever before and think people feel confident that they had enough information in order to make their decisions.

Q55 Mr Reid: You said that the ratio of Scottish election coverage to referendum coverage was 6:1. Do you think that the 1 in 7 that the referendum got was enough for the electorate to be able to make an informed choice?

John McCormick: People said they had enough information on which to make their decisions. I was surprised at the disparity between the two. I am also aware-

Q56 Mr Reid: I am trying to get at whether your analysis indicated whether the electorate understood what was being proposed in the referendum.

John McCormick: The research backed that up. We took research before, at the beginning of the campaign and then after the campaign. There was a dramatic increase in the knowledge of what was at stake and the issues across the UK but, also, especially in Scotland.

Q57 Mr Reid: In England, where council elections were competing with the referendum, what was the analysis there of the comparative media coverage?

Andrew Scallan: I cannot remember the figures, and, clearly, London only had the referendum so there was a distortion across the figures, but the election coverage was higher across the country. As John, said, it was something slightly less. I cannot remember the detail.

Q58 Mr Reid: The conclusion is that combining a referendum with a council election would not drown out the council election. Is that fairly well established?

Andrew Scallan: Yes.

Q59 Lindsay Roy: Do you agree with the House of Commons Constitution Committee that the Electoral Commission should have a statutory responsibility in forming the referendum questions, which should then be presented to Parliament for approval? Do you agree with that or not, and can you say why?

John McCormick: We have that statutory power under PPERA for referendums called by Westminster, but the nature and scope of any referendum is a constitutional issue for Governments and Parliaments to decide. We are pretty clear about that. Whether or not there is a referendum, who runs it and who votes are all fundamental constitutional questions. Our priority on the Commission side is simply to ensure that the referendum is well run. We believe-and certainly we said this in the notes we sent yesterday-that it is important that the plans for any referendum are considered carefully and fully. We do not intend to comment, and cannot comment, on speculation about the conduct of any proposed referendum until there are specific proposals to which to respond. Regardless of whether we have a role in a Scottish independence referendum, when proposals are brought forward, we will be ready to use our recent experience in running referendums to offer advice. The priority for us is to ensure that it is well run for our voters.

Q60 Lindsay Roy: You are happy to do that but you have no statutory locus. Is that right?

John McCormick: It is a matter for Parliament in Scotland if they give us a statutory locus.

Q61 Lindsay Roy: But you have a statutory locus with the local government elections.

John McCormick: Yes. They have enacted that for us.

Andy O'Neill: We do have statutory powers to give assistance to the Scottish Parliament and the Scottish Government.

Q62 Lindsay Roy: Does it not seem anomalous that you have a statutory responsibility for local government elections but apparently, as yet, no role with the Scottish parliamentary referendum?

John McCormick: We have not seen any legislation or proposals for a referendum in Scotland. From what we know of the timing of that, it is quite some way ahead and we would not have expected to have any.

Q63 Chair: Can I clarify this? Is there any reason why you should not be trusted to undertake the same sort of role in our referendum held by the Scottish Parliament as you would have for a referendum held by the Westminster Parliament?

John McCormick: The Electoral Commission and everyone involved in it respect the right of Parliament or Parliaments to make these decisions. It would be presumptuous of me as a Commissioner to say that it should be us. There are many different ways of running a referendum. In different countries around the world there are different approaches to it. Secondly, we stand ready to help and offer advice in any way that we are asked to do. As I said earlier, before we had the statutory power that the Scottish Parliament gave us for the local elections, we helped and advised on the local elections in 2007 and 2003 because we were asked to do it. If we were asked to help in the referendum this time, of course we would in any capacity.

Q64 Lindsay Roy: Has there been any preliminary contact about the referendum already with the Scottish Government?

John McCormick: No. When the 2010 consultation paper came out on the referendum, we responded to that and had discussions with officials and Ministers about it. We have had discussions at official level but not in any significant sense at an ministerial level.

Q65 Chair: Could I clarify whether or not you believe there is any reason why you should not be trusted to have the same sort of role in a referendum for Scotland alone as you would have for the UK as a whole?

John McCormick: I have no reason to believe, Chair, that anyone would have a lack of trust in us. I hope that would not be the case. If anyone had a lack of trust in us, I would be very concerned about that. If that were the implication of your question, I would like to follow it up. We hope we have demonstrated within the Welsh referendum and the voting referendum this year that we can be trusted to run referendums, but I underline what I said. It is a matter for others to decide, a matter for this Parliament and the Scottish Parliament to decide.

Q66 Chair: I understand it is a matter for somebody else to decide if they are the people who are running the referendum. Of course, that is not determined yet, but I wanted to clarify whether or not you have been given any reason as to why you might not be trusted. It would seem to me to be almost automatic, if you had been trusted to run one in Wales, one in the north-east of England and one across the UK as whole, that you could reasonably be trusted to run one in Scotland. I do not quite understand why there should be a question mark there.

John McCormick: I have no evidence that there is a lack of trust of the Electoral Commission. In fact, as I mentioned earlier, we were encouraged that the Scottish Parliament enacted a statutory power for the local government elections and also our proposal that the Elections Convener has a statutory power of direction was taken up and enacted by the Scottish Government.

Q67 Jim McGovern: Could you describe the consultation process between yourselves and the Secretary of State for Scotland prior to the AV vote last May?

John McCormick: We had two formal meetings. The first one was with the Secretary of State and his officials talking about a range of electoral issues, and the main subject of the discussion of the first meeting in this place was about the conduct of the Scottish Parliament elections. Then we had a separate meeting with Mr Mundell, who was taking charge of elections, in briefing him on what had happened up to date in terms of the running of elections and how it worked with the Electoral Management Board. The referendum was touched on in those meetings, but a main concern in both of those meetings was the Scottish Parliament elections.

Andy O'Neill: Of course, we are always working and talking with Scotland Office officials all the time in terms of the nuts-and-bolts operational matters.

Q68 Jim McGovern: Was it pretty much in line with consultations with the Secretary of State for Wales prior to the Welsh referendum?

John McCormick: I am not particularly clear about the consultations that took place in Wales. Andy sits with the Electoral Management Board. Scottish Government officials and the Scotland Office officials sit on that Electoral Management Board, and there is a lot of sharing of information, a lot of to-ing and fro-ing and factual information, advice and guidance that goes back in the normal working of trying to advise and help. But the formal meetings with the Ministers that I have outlined to you were mainly about the Scottish Parliament elections and issues such as combination came up.

Q69 Jim McGovern: Have there been any discussions with the Secretary of State for Scotland about the proposed referendum on separatism for Scotland?

John McCormick: No.

Q70 Jim McGovern: None.

John McCormick: None that have involved us.

Jim McGovern: Right. Thank you.

Q71 Fiona Bruce: We have talked about voters’ understanding and touched on the Wales referendum. Have you anything further you would like to add in terms of the extent of voters’ understanding on the subject of the Welsh referendum? What you identified was that "voters have less experience of participating in referendums compared to elections, which in turn impacts on the nature and extent of information accessible to the public". How did you address that?

Andrew Scallan: The approach we had in Wales was very similar in terms of the voting system referendum, which was that a leaflet or booklet was delivered to every household. The issue about the nature of public awareness in Wales was slightly different because they were not designated organisations. The for and against arguments were not advanced and rehearsed in the same way, and those organisations did not access the funds they were entitled to under PPERA. We tackled it by public awareness, as I have explained, through a leaflet. Because we were not able to designate organisations, we allowed those organisations that participated to have access to a website so the arguments could be rehearsed. When you cannot designate anyone, when the failure or inability to designate comes so close, there is a power for the Commission to take over and advance arguments for and against. The time did not provide for us to do that effectively because it was literally four or five weeks in advance; therefore, we gave access to a website so that people could have access to both sides of the argument.

Andy O'Neill: In addition, in Scotland, we have a publicawareness network of council PR officers, which is part of the Electoral Management Board, and we work with and encourage them to undertake public awareness strategies which complement what we are doing at the national level. We share things like template press releases, creative ideas and what we are going to do and when so that we avoid duplication. In a sense, Scotland is lucky that we have this network, which I believe works to a higher degree than in other places in the UK.

Q72 Fiona Bruce: Also, following the Welsh referendum, you talked about perhaps recommending generic conduct rules. Could you clarify that term before we proceed?

Andrew Scallan: If you can cast your mind back to what the Parliamentary Voting System and Constituencies Act looks like, there is a big chunk of it which is about the detailed conduct arrangements for the referendum. The point we are making is that parliamentary time is taken up by looking at very detailed things which do mirror and are capable of standing for every type of referendum. Hours of poll, how you process various things and how your count is conducted are essentially the same. What we are saying is that it is better to have one of those on the shelf and Parliament ought to be involved in the question of the timing issues rather than some of the very detailed technical issues, which, quite properly, should be capable of being transferred across to any type of referendum. That type of administrative function is banked, as it were, and it leaves the real political issue to be debated.

Q73 Chair: Can I clarify that? Presumably, there is the collective knowledge, either within yourselves or within the civil service or a combination of both, that already, almost in an unwritten form, there are these generic rules. Maybe they have not been spelt out in that form, but most of the knowledge will be there, surely.

Andrew Scallan: The knowledge is there, but the law is the law. We may know what we think we are going to do but sometimes the provisions of the law are needed. Some of the issues around combination can be particularly complex. There needs to be a clear assignment of responsibilities and that is what the legislation does. What we are saying essentially is, "Here is a template that should be followed"-which goes to your point about whether there is enough knowledge as to what should be done-"so get on and do it." The problem is that you always have to wait until you have seen the precise letter of the law before you can be sure that that is what you are doing.

Q74 Fiona Bruce: I am interested to know what response you might have had from Government to those recommendations, and, also, could you give us your view as to whether those generic rules should apply to every referendum in the UK, including in Scotland?

Andrew Scallan: Our comments about the generic rules are within the framework of PPERA. That is that framework. As to any other referendum that might take place under another framework, we cannot stipulate. Clearly, we are very comfortable that any set of generic rules would contain all the key elements that would be needed to properly conduct a referendum, but there may be other ways of doing things as well. It is within the framework for PPERA that we made that recommendation. In terms of the Government’s response, we are still awaiting a response to our report.

Q75 Fiona Bruce: Finally, are there any wider lessons which you think could be learned from the Wales referendum for Scotland in terms of a referendum that might be held there?

John McCormick: We have probably covered that, Chair. The importance of good public awareness and rigorous question testing certainly came through. There is a very interesting report on the website about the testing of the Wales question. What surprised us-maybe because we are more closely involved in the political process-is that the question contained the word "devolution." A very high number of people thought the word meant "deprivation". That took us all back with a start, 10 years after the creation of the Scottish Parliament. One of the misunderstandings is of the word "devolution". The question was recast quite significantly. As the report says, there was a very good understanding of the question. That underlined to us the very strong importance of allowing sufficient time for rigorous question testing so that people can understand what it means and what the outcome would be. That was a very complex question and complex area in bringing legislative powers to the Welsh Assembly. It is not easy to explain in pithy language. The feedback report indicated that we came out with something that the voters did understand and we had a very positive outcome to the referendum. It underlined that whole question for me. If you have a spare five minutes, Chair-I am not suggesting you might have-it is worth looking up that question assessment paper. We could send you a copy of it.

Chair: I will phone you.

Q76 Mr Reid: As you know, the Scottish Government are not allowing you to have the role that you would have in any other referendum within the UK but are setting up their own Scottish Referendum Commission. What is your view of the proposals in the draft Bill for the Scottish Referendum Commission?

John McCormick: That was the draft Bill, Chair, for the last proposal in February 2010. We have no indication any more than anyone else in this room would have of what the Scottish Government Parliament’s intentions are for the proposed referendum that will come up later in this parliamentary term.

Q77 Mr Reid: Looking at the proposals that were in the only draft Bill that has been published, what is your view of the fact that the proposals were to set up this Referendum Commission rather than yourselves? Are you aware of any other body within the UK that has the experience of supervising elections and referendums that you have?

John McCormick: Our priority, as we said in our letter to the Chairman yesterday, for any referendum is to see a wellplanned poll that is well delivered, a public awareness campaign-

Q78 Mr Reid: I am sorry, yes, but you do not have the role. What is your view on another body being given that role?

John McCormick: Referendums are run in different ways in different territories and countries around the world. There are different ways of doing it and some countries set up separate Referendum Commissions for each referendum. Others have standing electoral commissions who conduct the referendum. There are many different ways of doing it. It is a matter for the Scottish Parliament-I have to emphasise that-to decide which one they want.

Q79 Mr Reid: Would you want to comment on the proposals in the draft Bill or do you have any concerns about how independent this commission would be?

John McCormick: We have no indication that it would not be totally independent.

Q80 Mr Reid: You expressed concerns in your response to the draft Bill that it would not be financially independent and the staff would not be independent. Do you still stand by that?

John McCormick: We drew attention to that. My colleague here is a signatory to that. That was our response to that draft paper, but there we were doing what we feel we are entitled to do, which is to comment on a draft proposal. We do not have a draft proposal at the moment. That was that specific proposal and we raised a number of issues.

Q81 Mr Reid: Do you think that proposal is dead and buried or is there another proposal?

John McCormick: We have not seen any other proposal.

Lindsay Roy: It is the only one we have.

Mr Reid: Yes.

John McCormick: It is for a referendum that never made it to-

Andy O'Neill: But it was also a consultation paper which never saw fruition to a Bill which was introduced in the Scottish Parliament. We have no way of knowing if our comments were taken on board by Scottish Government officials.

Q82 Mr Reid: Have the Scottish Government responded to you at all? Have they had any discussions with you at all?

Andy O'Neill: If you mean for postMay this year, no.

Q83 Mr Reid: You have had no discussions at all.

John McCormick: I am sorry, Chair, you were indicating any discussions following the response to that consultation paper in February 2010. I think that is what the question was.

Mr Reid: Yes.

John McCormick: Can you remember that far back?

Andy O'Neill: I cannot remember that far back. There was not any discussion in terms of how we would go forward, because, from memory, Ministers decided pretty soon thereafter not to pursue the introduction of a Bill into the Scottish Parliament.

Q84 Mr Reid: For a flagship policy, does it not seem strange that there have been no discussions?

John McCormick: The matter was overtaken by events, as Andy says. It did not lead to a draft Bill on which we would have commented. It is at the draft Bill stage that we would expect to see proposals made and consultation papers-

Q85 Mr Reid: There was a draft Bill produced on which you commented. You expressed concern about the financial and staffing independence of the Commission. You have had no response to that. One of your key roles, which we have heard a lot about this afternoon, is commenting on the question. What concerns do you have about the process that will be put in place for reviewing the question in the referendum?

John McCormick: We do not know what process will be put in place. What we would hope is that-

Q86 Mr Reid: What process was involved in the draft Bill?

Andy O'Neill: The paper you have there before you, which is our response, is where we would reply to that. You would normally expect an independent electoral commission to comment on the intelligibility of the Bill, but the problem was that the Bill would set up-

Mr Reid: The question.

Andy O'Neill: -the Commission and also establish the question at the same time so you know you could do that. But it is for the Scottish Government and the Parliament to decide how they want to pursue that.

Q87 Chair: Can I clarify a point then? If you are not invited to express a view on the suitability of any question that emerges, would you be available to advise us as to your view on the suitability of any question that emerges?

John McCormick: We would expect to comment in public on any proposals that were put forward.

Q88 Chair: Is that even if you are not asked? I want to be clear. If there is a completely new group established and they are then asked, you presumably could end up being cut out of that loop altogether. I am seeking to clarify whether or not, if we ask you for your observations, you would be able to give them to us.

John McCormick: Yes, of course. If you invited us to come here and comment on any aspect that is within our competence to comment, then we would.

Chair: Fine. It is very helpful to clarify that we would be able to have that in the public arena.

Q89 Mr Reid: As you know, both in the draft Bill and in a conference speech by the First Minister, there have been suggestions that there will be two questions. Can you explain to us the implications of these two questions for the number of outcomes, which I believe is four? What implications would that have for what are called designated groups within the UK legislation?

John McCormick: We would not comment on hypothetical questions. We would have to see them in proposals.

Q90 Mr Reid: Would you comment on the draft Bill then?

John McCormick: We already have commented on the draft Bill.

Andy O'Neill: We would have to wait. That would be part of the assessment process. I cannot sit here today and give you comments on that Bill. The process is one of qualitative assessment and focus group work. For the AV referendum, we interviewed 41 people each for an hour. It is a long process. It does not lend itself to giving quick comments on questions.

Q91 Mr Reid: Can you comment on what the implications of two questions with four possible outcomes are for designated groups? Would you have more designated groups?

John McCormick: It depends on the questions, the outcomes and the relationship between the questions. If you have a multioption referendum, the clear criteria are that they should be clear, neutral and easy for voters to understand and answer, and you can only do that on a specific question. It would be very glib of us to comment on any aspect of the questioning-

Mr Reid: But you comment on the draft Bill.

John McCormick: -when we are talking about 10 weeks of user testing that we require as a minimum to rigorously test any particular question.

Q92 Mr Reid: Can you maybe explain the function of designated groups in a referendum campaign?

John McCormick: Before we appoint the designated groups-

Q93 Mr Reid: You make the appointment.

John McCormick: Do you mean in the UK for a PPERA referendum?

Mr Reid: Yes.

John McCormick: For a PPERA referendum we appoint the designated groups so we have to be clear-and it should be understood-that they represent a fair body of opinion for that specific side of the referendum question. They go through a fairly rigorous process of appointment with certain criteria we have to meet.

Q94 Mr Reid: In a twoquestion referendum, would you be setting up more designated groups?

John McCormick: We would have to wait and see what the question was. I cannot comment on it, Chair.

Q95 Chair: There must be at least two groups. If there are two questions, there have to be at least two groups, but we do not know how many other groups there would have to be.

John McCormick: No, we do not know. The issue for a PPERA referendum, and the issue we had in Wales, was that there were no designated organisations appointed because no one came forward on the no side. Therefore, the law clearly states-and it is something, as you will see from our report, that we have recommended needs to be looked at-that there could not be the benefits of having designated organisations in the Welsh referendum. But, Andrew, you are a world authority on this subject.

Chair: No pressure then.

Andrew Scallan: I am not quite sure I would go that far. It goes back again to the nature of the framework of the legislation that is dealing with it. PPERA provides for a yes and no campaign, essentially. If the nature of the question makes it more complex than that, then the framework would need to be reviewed.

Chair: I think we follow that.

Q96 Mr Reid: Can you explain to us what the implications are for spending capacity, depending on whether or not someone is made a designated group?

Andy O'Neill: I am not quite clear of the question. Are we talking about what was in that Bill or what may come forward in the future? At the moment we do not know what is coming forward in the future.

Q97 Mr Reid: I would like to talk about the draft Bill.

John McCormick: Do you mean 2010?

Mr Reid: Yes.

Andy O'Neill: From memory and the notes I have before me, my understanding is that with designated organisations it was suggested that there would be a limit of round about £750,000 for a yes and no campaign. We suggested that permitted participants would be able to spend up to £100,000.

Q98 Mr Reid: You suggested that, but what did the Bill say?

Andy O'Neill: The draft Bill, from memory, said £37,000. There was also unregistered participation which could go up to £3,000 and we were suggesting £10,000. But our understanding is that the important point is that there are no proposals at the moment. There are no questions. We would offer advice to Governments and Parliaments on how good electoral and referendum administration would go forward. But how it is structured and who does what is really the job of politicians, Governments and legislators.

Q99 Mr Reid: Surely, an independent body should be supervising the referendum, not the Scottish Government.

Chair: I do not think hand signals are necessarily recorded, so it would be helpful if you could clarify exactly what you meant by that.

Andy O'Neill: The February 2010 consultation period envisaged an independent Scottish Referendum Commission being established.

Q100 Mr Reid: You expressed concerns about its independence.

John McCormick: Certain aspects are in the report.

Andy O'Neill: We expressed concerns about its financial independence through its funding mechanisms, which, we thought from what was in the consultation paper, would be different from how the UK Electoral Commission is established, and we would envisage discussions on that.

Q101 Mr Reid: You also expressed concerns that, if one of the participants was a registered party in the Scottish Parliament and another participant was not a registered party but, say, a group of parties coming together to form a group, the participant that was a designated party would have a financial advantage. Is that correct?

Andy O'Neill: That is true, yes. We have to remember that one of the premier purposes for consultation is to tease out these things. Again, we made all these points. We do not know if the points would have been taken forward into the Bill when it was introduced because there was no Bill introduced into the Scottish Parliament.

Q102 Mr Reid: The proposal was also for 16 and 17yearolds to vote. Do you have any concerns about the registration process for 16 and 17yearolds?

Andrew Scallan: It was a proposal and at the moment there is no further proposal. The change to the franchise, we make very clear, is the duty of Parliament with responsibility for franchise. The gathering of information about what could well be 15yearolds, to make sure that they are on the register by the time they are able to vote when they are 16, is a process that would need careful review so that electoral registration officers have access to all the information necessary to ensure that that new cohort of people getting on the register are aware of their ability to get on.

Q103 Mr Reid: We have UK legislation under which electoral registration officers operate when compiling the register. If a register for the referendum was being compiled that included 16 and 17yearolds under Scottish legislation, do you have concerns about how we would end up with an accurate register for the referendum?

Andrew Scallan: As I said, it would require careful planning. The register of electors already has more than one characteristic. There is a register for parliamentary elections. There is a separate register for European elections. There are further distinguishing marks that are used on the register for local elections. The register is not a straightforward simple list. It is used for different purposes and people have different qualifications within it. Someone with an indicator against their name is not entitled to vote at a parliamentary election but can vote at local elections. We are already dealing with something that is less than straightforward and this would be an additional issue with which to wrestle.

Q104 Chair: Can I follow that up in terms of lead times? If it was agreed by the Scottish Parliament that they wanted 16 and 17yearolds to be able to vote, and, therefore, presumably some people who were 15 would have to be registered, what sort of lead time do you need to have for that decision to be taken to be effective for a referendum?

Andrew Scallan: As I said earlier on, it requires careful planning. It would depend entirely on the passage of the legislation providing the change in the law and how that fitted in the cycle of the electoral registration officer’s duty to compile the electoral register, to do with when the register is published, and then to do with the timing of the referendum itself.

Q105 Chair: I am not quite sure that answers the question.

Andrew Scallan: I appreciate you want a more straightforward answer, but the compiling of the register, the timing of the legislation and the event itself would all need to be factored into account.

Q106 Chair: Yes. Much of that I am aware of. What I am looking for is a time scale. Presumably, a decision to have 16 or 17yearolds voting on a referendum that would be held next week could not be managed. I presume it could be managed within a decade. Where in between is it realistic to expect that sort of process to be manageable?

Andrew Scallan: As to the changes in legislation, if you think back to the answer I gave about the complexity of the electoral register where EU citizens are given rights to register and changes in the franchise happen, it will take some months, but it would depend on the nature of the event, because, if it is geared to a particular event, first of all, there is the awareness-raising about the change. One might assume that during the passage of the legislation EROs were preparing to understand how they would gain access about 15yearolds. It is not a question to which I can give you a straightforward answer, Chair. It would certainly be less than a decade and, without a doubt, longer than a week.

Q107 Chair: Could it be six months? Is it doable within the same 26 or 28month framework?

Andrew Scallan: It is a separate issue and I would not want you to assume anything.

Q108 Chair: Do you have any idea?

Andrew Scallan: It will depend on the timing, Chair, and I cannot be more specific than that. If the legislation went through in a week so that there was no time to prepare, that would influence the overall period of time within which the change could be made. If the legislation was trailed and there was time to prepare, to make sure that all the mechanisms were in place about the best way for electoral registration officers to reach 15yearolds, that would be a feature. If the change came in during the household canvass period, for example, that changes the nature of the inquiries that are going on. It requires changes to forms that are sent to households, and, if the legislation was through in the summer and the household canvass takes place in the autumn, that is known to be the best way of getting people on the register. That would be one method of doing it. If the timings changed at different months of the year, then the response would be different.

Chair: Fine.

Q109 Mr Reid: What do you think is the period of time before polling day when local and central Government should be stopped from putting out promotional material about the referendum?

Andrew Scallan: We have recommended 28 days in our report.

Q110 Mr Reid: In your response to the consultation in 2010 you noted that the period was 28 days and you said you believed that the restrictions on the publication of promotional material for these organisations should apply for the duration of the referendum period, which is, I believe, longer than 28 days.

Andrew Scallan: I had better check on that.

John McCormick: In the document we have said 28 days for public organisations.

Q111 Mr Reid: You also mentioned in your response that you had concerns that the provisions in the draft Bill for independent observers did not meet UK or international norms. Is that correct?

Andy O'Neill: Yes. One of the interesting things is that since that document came out-because they now exist in terms of local government elections-the observers scheme, which is in place for all elections in Scotland apart from local government elections, is now used in local government elections. I assume, from memory, that that comment is about the higher standard of observers scheme which we had for parliamentary elections, which did not exist for local government elections but now does. I would have thought that would translate into whatever the referendum legislation talked about in terms of observer provision.

Q112 Mr Reid: To summarise, you put in a lot of concerns about the draft Bill that we have been over and the Scottish Government have not responded in any way to you regarding these concerns.

Andy O'Neill: That was 2010; now it is 2011. The interesting thing is that we have had two referendums which we have administered under PPERA. We know that the Scottish Government have been waiting for our report, which only came out 10 days ago, about the administration of those referendums. They have been waiting for that. It informs their policy development. We would expect, therefore, that their policy development wheels will start soon.

Q113 Mr Reid: Can I have a simple yes or no answer: have the Scottish Government responded to the concerns that you raised over a year ago?

Andy O'Neill: No.

Q114 Lindsay Roy: In terms of a long campaign and a short campaign, when would a long campaign for a referendum start? Would it be the date it is initiated and what kind of time span would there be for a short campaign? How does that relate to the funding for the various campaigns?

Andy O'Neill: It depends what the rules say for the regulation of the referendum campaigns. What we have said for PPERAbased referendums is that the regulated period should be 16 weeks. We are not aware of any of the rules so I cannot comment on the specific question. For a PPERAbased referendum we would argue that the regulated period should be 16 weeks.

Q115 Chair: Can I be clear for the AV referendum that the regulated period was 16 weeks?

Andy O'Neill: It started as soon as the Bill received assent, which I do not think was 16 weeks.

Q116 Chair: It was less than 16 weeks. Can I be clear again on that? During that period, the only money that was allowed to be spent was regulated, each of the main protagonists was identified by you, and they had cash limits on how much they could spend. In a situation where the rules are entirely different, say, for a Scottish referendum, it might be that there are no spending limits on one side or the other. Can I clarify whether or not there are any international rules that would prohibit or argue against one side perhaps being allowed to spend unlimited amounts, whereas the other side did not have that amount of money? Are there national guidelines about fairness on spending or is this entirely something left to the individual jurisdictions?

Andrew Scallan: It is something left to individual jurisdictions. There is good practice recommended by a number of organisations, but there is varying practice around the world. We have set out in our principles that we think there ought to be regulation of spend by either side.

Q117 Chair: Maybe you can remind me of this because my memory fails me. In the AV referendum, the UK Government did not campaign one way or the other, if I remember correctly.

Mr Reid: It was split.

Chair: It was split; that is right. If we had a referendum on separation in Scotland, presumably there would be no rule precluding the Scottish Government campaigning with as much money as they wished on one side or the other. Is that correct? Does the question of international norms come in here?

Andy O'Neill: It would depend on what the rules said under which the referendum was run.

Q118 Chair: That is right. Let me be clear then. The rules that would determine whether or not there could be unlimited spending and the Government could spend money would be determined by a group that the Government would set up, which is as yet unspecified and unknown. Is that a summary of the position?

Andrew Scallan: The assumption would be that those rules would be set by Parliament, by the respective or most appropriate Parliament, not by an independent body. The rules on designation are not set by the Electoral Commission. We operate within the legal framework-within PPERA-and we seek to do everything we can to make sure that people comply with the rules. We do not establish the rules.

Q119 Chair: I just want to be clear. You have rules, guidelines, structures and best practice and so on. If somebody decided not to use your expertise, the Scottish Parliament, for example, could quite easily decide to have unlimited spending by the Scottish Government. They could quite easily decide that there was no need for balanced expenditure on either one side or the other and could establish an independent group to monitor that there should be no rules. That would be a fairly straightforward sort of task, would it not? All of that is entirely feasible, is it not?

John McCormick: It is a matter for the Scottish Parliament.

Chair: Indeed it is. Thank you.

Mr Reid: That is a question I was asked earlier. In the draft Bill the Scottish Government had proposed that restrictions on Government spending would only come in 28 days before the referendum; the Electoral Commission had expressed concern that that was too short a period and they should apply it to the full 16 weeks.

Q120 Chair: That is helpful. Are there any other points that any of my colleagues wish to raise? Are there any answers that you had prepared to questions that we have not asked you?

Andrew Scallan: On one point on this issue about public spend, I do not feel we have given you a full answer. You have certainly been able to quote to us the response that we made to the draft Bill. I would like to write to the Committee and be absolutely clear about that period of time.

Chair: That would be helpful. I mentioned earlier that we would welcome your observations on any Bill or proposals that come forward from the Scottish Government. Could I refresh that and say that, in case you are not formally asked by the Scottish Government to comment on these matters, we would very much want to have observations from yourselves on all of these issues in order that we, representing people in Scotland, can comment also?

Q121 Lindsay Roy: I have one final question. I understand Professor Qvortrup is a constitutional expert on this area of referendums. Does he advise the Electoral Commission? Has he done so on a regular basis?

John McCormick: I think he has done some work for the Electoral Commission in the past, has he not, Andrew?

Andrew Scallan: Yes, some years ago.

Q122 Lindsay Roy: You will be aware that, recently, although we have nothing definitive in terms of a question, he said that two questions where people can vote yes to both is simply not feasible.

John McCormick: Yes. I followed that correspondence and his followup letter in The Times with great interest too.

Lindsay Roy: So did we.

Q123 Jim McGovern: The Scottish Executive have said that the maximum any party or organisation could spend would be £750,000 on the question of a referendum. Could you maybe tell us if that is legislation or advisory?

Andy O'Neill: That was the limit being quoted in their consultation paper in February 2010. Again, we do not have any proposals from the Scottish Government.

Q124 Jim McGovern: If they wished to, they could ignore that.

Andy O'Neill: Yes. It depends what you put in the Bill which they introduce in the Scottish Parliament.

Chair: Thank you very much, gentlemen.


[1] Ev XX - Further supplementary written evidence submitted by The Electoral Commission

Prepared 2nd February 2012