AEA response – Scottish Government LG elections 2022 conduct order consultation

Contact Details:

National AEA: Angela Holden, Policy Manager on behalf of the AEA Email: angela.holden@aea-elections.co.uk

Tel: 01344 625169           Mobile: 07752 630497

Scotland and Northern Ireland Branch of the AEA

Andy Hunter, Chair of Scotland and Northern Ireland AEA branch Email: andyaea@outlook.com

Tel: 01786 892207

Proposed changes to the Scottish Local Government Elections 2022 Conduct Order:

1. Exclusion of certain items from expenditure – in line with the position agreed by the Parliament for Scottish Parliament elections (and referendums in the Referendums (Scotland) Act 2020), reasonable additional costs incurred in connection with adapting campaign materials for those with disabilities, providing security at election events and translating election materials into other languages will not count against expenditure limits. The costs of providing these services will still have to be funded by campaigners and parties

This is a matter for the Scottish Government to decide. We do not hold a view on this matter as it is outside the scope of the work of electoral administrators.

2. Advertising that candidates’ expenditure returns are available for inspection – to allow Returning Officers to advertise the availability of the expenditure returns in such manner as they think fit. Many stakeholders are of the view that newspaper publication is no longer the most cost effective way of giving notice of the opportunity to inspect expense returns. All councils have alternative ways of publicising notices and similar documents, normally including online publicity and the placing of notices in libraries and other public buildings.

We support this proposal and welcome the suggested change, which has been one of our previous post-election report recommendations.

3. Increase of candidate’s expenditure limits – increase a candidate’s expenditure limits from £740 and 6p per elector, to £806 and 7p per elector.

This is a matter for the Scottish Government to decide. We do not hold a view on this matter as it is outside the scope of the work of electoral administrators.

4. Definition of election expenses – commencement of section 17 and schedule 1 of the Local Electoral Administration and Registration Services (Scotland) Act 2006 (LEARS) and any related need to amend the definition of local government election expenses in section 90ZB and schedule 4B of the Representation of the People Act 1983 (as inserted by the LEARS provisions noted above).

A key question on which views are invited is whether or not the definition of expenses should continue to include expenses incurred before the date on which the person becomes a candidate.

This is a matter for the Scottish Government to decide. We do not hold a view on this matter as it is outside the scope of the work of electoral administrators.

5. Legibility of imprints on printed campaign materials – in line with the similar change for Scottish Parliament elections, we are proposing that a minimum type size, which depends of the size of the printed material or advertisement, should be specified in the Any election publication must have an imprint setting out details of the printer, promoter and publisher of the publication. This is required so that the reader knows the source of the information and views expressed in the publication and can make a reasoned judgement as to its content. An illegible imprint, although present, is not complying with the spirit of the legislation. Please note that under the Scottish Elections (Details to appear on Election Material) Regulations 2020 and the Scottish Elections (Details to appear on Election Publications) Regulations 2020, digital imprints also apply to the Local Government Elections.

We support this proposal.

6. Issue of official poll cards to prisoners – allow for a prisoner’s official poll card to be sent to their prison address as opposed to their registered address. Part 3 of the Scottish Elections (Franchise and Representation) Act 2020 extended the franchise at devolved elections to prisoners sentenced to a term of 12 months or less and who are detained in UK prisons (and who would be able to vote in Scottish elections but for their incarceration).

We support this proposal.

7. Registered address for detained prisoners who are applying for an absent vote – amend the legislation so that, in the case of a detained prisoner who is eligible to vote, the address specified in their application for an absent vote can be the address shown on their declaration of local connection.

We support this proposal.

8. Minimum number of counting agents which can be appointed – continue to allow returning officers to limit the number of counting agents, but make a change in legislation so that the minimum number of counting agents per individual candidate and party must be:
   1. the same in the case of each candidate and party; and
   2. the number allowed to a candidate or party shall not (except in special circumstances) be less than the number obtained by dividing the number of clerks employed on the counting by the number of candidates.

This would bring practice at Scottish local government elections into line with that at other elections in Scotland.

We support this proposal. We would like to see more detail about what ‘special circumstances’ entail, but are assuming this would include epidemics/pandemics.

9. Deadlines for replacement of spoilt or lost postal ballot papers – The existing deadline for replacement of lost or spoilt postal ballot papers at local government elections is 5pm on the day of poll. The equivalent deadline for replacement at Scottish Parliament elections was recently changed to 10pm on the day of poll. We seek views on whether the deadline at both Scottish Parliament and Local Government elections should be standardised at 10pm.

Due to practical implications, we do not support the deadline changing to 10pm on the day of poll. Such a change could limit the availability of skilled resources at different venues including election counts and postal vote opening sessions at that time. It could also impact on electoral staff being able to take vital rest breaks between 5pm and 10pm because of the need to be available.

The only way this proposal would work is if legislation prescribed that the verification and counting of votes did not commence until the day following the poll rather than immediately following the close of poll.

However, even with this the deadline for issuing replacement spoilt and lost postal ballot papers and returning at the same time as the practical steps to prepare a replacement pack to issue to the person for them to complete would take time. Therefore, an alternative option of a later deadline of 9pm maybe more practical. This would give time for a replacement pack to be prepared, completed, and give flexibility to the RO to be able to resource postal vote sessions and/or counts taking place around the close of poll. A 9pm deadline would also be in line with the clerical error deadline of 9pm. Which gives the ERO the time to investigate and issue authorisation for it to be replaced in a practical time for it to be of use to the elector.

10. Emergency proxies – introduce a new category of eligibility for an emergency proxy where something occurs to a potential voter, which would prevent them voting in person, shortly before the deadline for a normal proxy but, for good reasons, they were not able to apply for a proxy until after the proxy deadline. In such a situation, the individual will be able to apply for an emergency proxy but they must provide an explanation of why they were unable to apply before the normal deadline. As currently, the final decision on whether to grant an emergency proxy would lie with the Electoral Registration Officer.

If this proposal were to be introduced, it would be essential for clearly defined parameters to be prescribed to ensure electors were being treated equally across all areas. Emergency proxy applications must remain emergency applications rather than being used as a backdoor way of changing the ordinary proxy deadline.

11. Appointment of replacement proxy – The intention is to make provision for an elector to appoint a replacement person as their proxy, should their original proxy be unable to vote due to following Government or medical guidance related to COVID-19. An elector will be able to appoint a new proxy up until 5pm on the day of the poll, in line with the existing deadline for the appointment of emergency proxies. The new proxy must meet the usual requirements for appointment as a proxy.

We support this proposal, but question whether more thought should be given to permitting changes in other circumstances, such as those covered by the emergency proxy process.

12. Implementation of Electoral Commission post-2017 recommendations – implement proposals from the Commission’s report on the 2017 Local Government elections to bring in donation controls for candidates at council elections; give a statutory role for the Commission to provide guidance for candidates and agents at council elections; and to specify a list of activities that count against candidates’ spending limits at council elections.

This is a matter for the Scottish Government to decide. We do not hold a view on this matter as it is outside the scope of the work of electoral administrators.

11 June 2021