The UK Government introduced the Elections Bill in the House of Commons on 5 July 2021. The Bill seeks to change electoral law in a number of areas.
This extended blog considers the Elections Bill and its implications for voters and electoral administrators in Scotland.
The Scottish Parliament and electoral law
The Scottish Parliament and Government have powers and responsibilities relating to ‘Scottish elections’ (those to the Scottish Parliament and local government in Scotland).
Elections to the UK Parliament are reserved. In this blog the shorthand used to refer to such elections is ‘reserved elections’.
In some cases, matters which relate to Scottish elections, for example, legislation which governs the registration of political parties, is reserved to the UK Parliament.
Legislative consent
Given that the Elections Bill makes provisions in devolved areas for Scottish elections, legislative consent is being sought for some of the provisions in the Bill.
The UK Parliament retains authority to legislate on any issue, whether devolved or not. However, the UK Parliament will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament. A SPICe blog ‘What is legislative consent?’ explains the process in more detail.
The Scottish Government lodged a legislative consent memorandum (LCM) on the Elections Bill on 22 September 2021. The Scottish Government is recommending that the Scottish Parliament does not give consent to the Bill.
The Scottish Government had indicated that it is sympathetic to a number of the proposals in devolved areas, but that it intends to bring Scottish legislation forward ahead of the next scheduled Scottish Parliament general election in 2026. On a number of the other proposals, in particular voter ID, the Scottish Government does not agree with the UK Government’s position.
What does the Elections Bill propose in relation to reserved elections?
There are a number of ‘headline’ proposals in the Bill which affect reserved elections only. As explained above, in Scotland this means elections to the UK Parliament, but elsewhere in the UK the proposals may also apply to other elections such as local government elections in England. The proposals are:
- A requirement to show photographic ID before collecting a ballot paper to vote.
- Increasing the frequency with which a voter needs to apply for a postal or proxy vote from five years to three years.
- Removing restrictions on who can act as a companion to a disabled voter at a polling station, and requiring local returning officers to provide support for a wider range of needs.
- Allowing UK citizens who have lived abroad for longer than 15 years to vote.
The requirement to show photographic ID is the proposal which is attracting significant attention. The UK Government has said that the proposal will prevent voter fraud and argues that
“Showing ID is something that people of all backgrounds already do every day…Proving who we are before we make a decision of huge importance at the ballot box should be no different.”
Opponents to the move argue that ‘personation’ (voting as someone else which is a crime under section 60 of the Representation of the People Act 1983) at elections is uncommon. There is also concern that certain groups are less likely to have photo ID, making it harder for them to vote.
Although making the law on these issues is reserved to the UK Parliament, the changes will have an impact on Scottish voters and electoral administrators in Scotland.
There is a potential for confusion amongst voters about ID requirements at different elections. For administrators, there is the work involved in highlighting the requirement, issuing local voter ID cards where an individual does not have another form of ID and training election staff to ensure that those working at polling stations in the future are aware of the requirement.
Similarly, the changes to postal/proxy voter applications have the potential to confuse voters who will have different renewal dates for Scottish elections and reserved elections.
Electoral Registration Officers in Scotland are responsible for keeping the electoral roll up-to-date in their area. The changes to postal and proxy voting renewals will have an impact on their workload. The change the Bill proposes for allowing UK citizens living abroad to vote in reserved elections will also impact on the work of Electoral Registration Officers who will need to verify individuals applying to be an overseas elector if their last UK residence was in Scotland.
What does the Elections Bill propose in relation to Scottish elections?
A number of changes to Scottish elections are also proposed in the Bill. These are areas in which the Scottish Parliament could legislate if it wished to. The UK Government is, however, proposing to make these changes on a UK wide basis via the Elections Bill.
- An update on what constitutes ‘undue influence’ of a voter. Undue influence is a corrupt practice in electoral law. Anyone found guilty of a corrupt practice would be restricted from standing at Scottish elections for five years. At present the law in this area refers to outdated and unrecognisable harms such as ‘temporal or spiritual injury’. The Bill updates the offence to include harms like physical violence, damage to a person’s property or reputation or inflicting financial loss. Intimidation of electors is explicitly listed as a form of undue influence.
- Provision for a ‘Strategy and Policy Statement’ for the Electoral Commission to be introduced. The statement would set out the UK Government’s priorities for electoral matters and give the Electoral Commission strategic direction. The statement would be approved by the UK Parliament. Scottish and Welsh Ministers must be consulted on parts of the draft statement that relate to the Electoral Commission’s devolved functions. The Speaker’s Committee on the Electoral Commission would have the power to examine the Electoral Commission’s compliance with the Strategy and Policy Statement. Although Scottish Ministers would be consulted on the statement, the Speaker’s Committee is made up of MPs and reports to the House of Commons.
- Notional expenditure during campaigns. Notional spending is a benefit in kind (property, goods, services or facilities) which are made use of on behalf of a candidate. This Bill clarifies the law so that benefits in kind only require to be reported where they have actually been used by a candidate/agent, or where a candidate/agent has directed someone else to use them. It does not hold the candidate/agent responsible for benefits in kind of which they had no knowledge.
- Regulation of spending by third parties. Third-party campaigners (also called non-party campaigners) are individuals and organisations that campaign in the run-up to elections but are not political parties and do not stand candidates. At present, if a third-party intends to spend more than £10,000 in a devolved nation on certain activities during the regulated election period they must register with the Electoral Commission. Those who can register as third-party campaigners are set out in law but the list effectively restricts registration to UK-based individuals and organisations. The Bill removes the scope for any legal spending by foreign third-party campaigners which falls below the £10,000 registration threshold but above £700. The existing threshold for both registration and reporting for non-party campaigners at Scottish elections is already £10,000.
- Disqualification of offenders for holding elective offices as a result of intimidatory or abusive behaviour. The Bill introduces a new electoral sanction of a disqualification order imposed by the courts. It aims to protect candidates, future candidates, campaigners and elected officeholders from intimidation and abuse, both online and in person. Someone convicted of intimidation will face a five-year disqualification from standing for, being elected to and holding elective office. This is in addition to existing criminal sanctions for intimidatory behaviour. UK Ministers would be able to vary or omit offences from the list of criminal offences set out in the Bill in respect of which a disqualification order can be made.
Digital imprints
Digital imprints on material allow information appearing online to be traced back to its source. Scottish legislation already requires digital imprints on material for Scottish elections.
The Bill would require political campaigners to explicitly declare who they are and on whose behalf they are acting when promoting campaign content online. All paid for digital political material would require an imprint. In some cases organic material (that which is not paid for) would also require an imprint. Some campaigners already do this, but it is not a legal requirement except at Scottish elections.
The Bill also provides for the removal of the electronic material following a conviction for an imprint offence.
The UK Government believes consent is not required for clauses 35 to 56 of the Bill which relate to digital imprints (under the ‘Internet Services’ reservation in the Scotland Act 1998). The Scottish Government considers that the matter is within the competence of the Scottish Parliament except for the provision relating to the removal of electronic material which it agrees is reserved.
Implications
The Scottish Law Commission has previously commented that “Electoral law is complex, voluminous and fragmented.” The Elections Bill adds further complexity to Electoral law.
In Scotland, the increasingly different electoral landscape at reserved and Scottish elections is a challenge for voters and electoral administrators to navigate.
The Scottish Government has indicated in the LCM that it intends to legislate for some of the changes proposed in the Bill on a Scottish basis ahead of the 2026 elections. It remains to be seen whether the UK Government will push ahead with the Elections Bill in its current form prior to Scottish specific legislation being introduced.
Sarah Atherton, Senior Researcher, SPICe