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Clause 1 — Administration of elections

Scotland Bill – in the House of Commons at 4:45 pm on 7th March 2011.

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Photo of Tom Greatrex Tom Greatrex Shadow Minister (Scotland) 4:45 pm, 7th March 2011

I beg to move amendment 10, page 1, line 22, at end insert—

‘(3A) After subsection (2) there is inserted—

(2A) The first order made by Scottish Ministers under subsection (1)(a) must include the application to Scottish Parliamentary general elections of the terms of paragraph (3A) of Rule 45 (the count) and Rule 53ZA (counting of votes: statement by returning officer) in Schedule 1 to the Representation of the People Act 1983.”’.

Photo of Dawn Primarolo Dawn Primarolo Deputy Speaker (Second Deputy Chairman of Ways and Means)

With this it will be convenient to discuss the following:

Clause stand part.

Government amendment 29.

New clause 5—Administration of elections—

‘(1) In Part 1 of Schedule 4 to the Act (enactments protected from modification by the Parliament), in paragraph 4(2) after “1(4)”, there is inserted “12”.

(2) In Part 2 of Schedule 5 to the Act (reserved matters: specific reservations), in Section B3 (elections) the words “the European Parliament and the Parliament” are omitted and the words “and the European Parliament” are inserted.’.

Photo of Tom Greatrex Tom Greatrex Shadow Minister (Scotland)

It is a pleasure to serve under your chairmanship, Ms Primarolo, as we embark on the Committee stage of the Scotland Bill. Since we last debated the issues on Second Reading, the legislative consent motion Committee has made its report to the Scottish Parliament, which we received last week. I understand that it will be debated by the Scottish Parliament later this week. There is also the ongoing scrutiny of these matters by the Select Committee on Scottish Affairs, to which the Secretary of State and others have given evidence. We are part of the way down the road, but there is still some way to go.

It is right that our scrutiny is done thoroughly and with care, and that the issues are properly raised and discussed, particularly in the Committee stage on which we have embarked. I am sure that many Members will wish to press their points on different aspects of the Bill. For our part, we have tabled a number of amendments, of which amendment 10 is the first. Some are designed to tease out detailed consideration to which the Minister might wish to respond further today or on Report, while we intend to press other amendments to the vote.

I would like to say at the outset how grateful we are for the assistance and discussion we have had with a wide range of interested parties and individuals over the past few weeks as we have sought to scrutinise the Bill. We are also grateful for the Secretary of State’s confirmation—after some reasoned but pointed business questions in recent weeks, which also ensured that the

Leader of the House had a fuller understanding of the Holyrood legislative process than he otherwise would—that the Government will not move forward to Report until the LCM process in Holyrood has been completed. We also note the Secretary of State’s confirmation that while he will wish to reflect on the content of the initial LCM Committee report—and, presumably, the motion that accompanies it—he will not necessarily be bound by it, which is a point he recently made at the Scottish Affairs Committee inquiry. The LCM Committee made a number of observations and recommendations, and I am sure the whole House—well, at least some of it—will look forward to hearing the Government’s response to those points.

It is part of the responsibility of Members to press on particular aspects of the Bill. There are strongly held views on both sides of the House on some aspects of devolution, but it is important to endeavour to continue our scrutiny of what the Secretary of State himself has proclaimed to be the most significant development in constitutional arrangements since the Scotland Act 1998. Our reference point, as always, because of its shared, cross-party status, is the report of the Calman commission, which hon. Members know led to an earlier White Paper before the general election and, subsequently, to this Bill.

Clause 1 deals with the administration of elections, which Calman recommended should be devolved to the Scottish Parliament. Amendment 10 deals specifically with overnight counts, which I shall discuss first. It is widely acknowledged that, by and large, people in Scotland want to know the results of their elections as soon as it is practicable so to do. That was the objective of the Minister when he was in opposition in the lead-up to the general election last year and it was supported by the then Opposition parties in respect of an amendment to the Representation of the People Act 1983, which my amendment seeks to replicate. The Government are well aware of the history.

Partly owing to measures of the Government’s own making, such as the imposition of a referendum on the same day as the Scottish parliamentary elections, and partly owing to the views of electoral administrators—who always come out of the woodwork during the build-up to elections—there has been continuing speculation in recent weeks that returning officers will again seek to move wholeheartedly to morning counts, which is something that they do habitually. They tried it in 2005—when, as an employee of East Dunbartonshire council, I was closely involved in the arrangements relating to the count for the redrawn East Dunbartonshire constituency—but got nowhere. They tried it in 2007 for the purpose of the Scottish parliamentary elections, notwithstanding the disruption caused to those elections, although—unlike the design and descriptions on the ballot papers—the time of the count was not an issue; and they tried it again in the run-up to the general election.

As the Minister will recall, I raised the matter with him via the Leader of the House. Despite an earlier suggestion that it might be dealt with in the Parliamentary Voting System and Constituencies Bill, he wrote to me saying that he was not prepared to change the law, that it was all very difficult, that returning officers were independent and he could not tell them what to do, and that we should leave it at that and lobby if we so wished. That was an interesting revision of the view that the

Minister had expressed about a year ago, before the general election. I have with me the letter that he sent to me, in which he said that he assumed that I knew all that, given my long service as a special adviser at the Scotland Office. Given that long service at the Scotland Office, I was also aware that I would receive a letter from officials that I would send back, asking them to try again. Perhaps the Minister will learn that in the months and years to come.

The spectre of election counts not starting as soon as practicable is still with us in respect of the voting in May. Although the revered Tom Aitchison of City of Edinburgh council is no longer in post, his successors keep trying. The amendment deals with the issue for the next election to the Scottish Parliament and every other set of Scottish parliamentary elections by invoking the amendment to the Representation of the People Act that finally dealt with it before the general election.

I note the comments of the Electoral Commission, which has said that the amendment contains flexibility to deal with the position in constituencies such as Argyll and Bute in which there are practical problems connected with starting counts. However, it allows the counts to begin as soon as practicable after the election. Given that the Minister and his colleagues voted for this 12 months ago, I am sure that even within the scope of the coalition agreement there is the opportunity for some consistency on the Government’s part. I hope that those of us, in all parts of the Committee, who wish to reflect the view of our constituents that counts should happen as soon as possible after elections make our position clear. I shall be interested to hear the Minister’s comments.

Photo of Eleanor Laing Eleanor Laing Conservative, Epping Forest

I find myself in the extremely unusual position of agreeing entirely with everything that Tom Greatrex has said. That is not surprising, however, given that the amendment that was accepted by the Government approximately a year ago, before the last general election, was originally tabled by me. Mr Straw wisely added his name to it and accepted it as a Government amendment, and it became part of the Bill. At the time, I thought that that was the only thing that I had ever achieved from the Opposition Front Bench, but perhaps that was due to the cynicism engendered by 13 years of opposition.

I am delighted that the hon. Member for Rutherglen and Hamilton West has tabled the amendment again. It was very popular with Members in all parts of the House when we debated it a year ago. It became law, and it made a difference to the way in which the general election was administered and to the timing of the extremely disappointing results of that election across the country. But if we were going to get bad news, perhaps it was as well to get it sooner rather than later. That is not the point, however. The point is that, in the operation of our democracy, it is right that election counts should take place as soon as practically possible after the close of poll.

We discovered that many excuses were being made by returning officers around the country for not undertaking their duties in a timely and correct manner. They made every excuse that they could think of, none of which proved to be correct, because, when the law was changed and they were required to act as they ought to have been acting in the first place, they did so. I look forward to hearing what the Minister has to say on this amendment, but I hope that I shall be able to support what the hon. Gentleman has just proposed to the Committee.

Photo of Pete Wishart Pete Wishart Shadow SNP Spokesperson (Culture and Sport), Shadow SNP Spokesperson (Constitution)

I welcome you to the Committee, Ms Primarolo. I know how much you appreciate the convivial nature of Scottish debates, and I hope that we will do our best to behave ourselves today and to conduct these proceedings in a civil manner.

On Second Reading, we made it clear that it was our intention to improve and strengthen the Bill. I concede that, over the past few weeks, significant progress has been made in that direction. We have already had the report from the Scottish Parliament’s Bill Committee, which made a number of useful and helpful recommendations, especially those that apply to the non-fiscal parts of the Bill. I welcome those recommendations. It is perhaps unfortunate, however, that some of them cannot be properly debated because of where we are in the process. The Scottish Parliament has not even passed its legislative consent motion, yet we are here in Committee today discussing the Scotland Bill, line by line and clause by clause.

Photo of Cathy Jamieson Cathy Jamieson Labour, Kilmarnock and Loudoun

Notwithstanding all that, and the fact that there is a huge amount of discussion still to be had, will the hon. Gentleman address the amendment? Does he not agree that it is absolutely right that the count in all Scottish parliamentary elections should take place immediately, overnight?

Photo of Pete Wishart Pete Wishart Shadow SNP Spokesperson (Culture and Sport), Shadow SNP Spokesperson (Constitution)

I have no dispute whatever with the hon. Lady about that; of course the count should take place as soon as possible—[ Interruption. ] If she will allow me, I must point out that we are debating clause 1. She needs to check what we are discussing just now.

We have made progress, but it is unfortunate that we are unable to debate certain amendments that could have been tabled on the back of what was proposed by the parliamentary Bill Committee in the Scottish Parliament. We are at a different stage in the process. The legislative consent motion has not been passed, yet we are here today scrutinising the Bill in detail in Committee without having access to that important work.

Photo of David Mundell David Mundell The Parliamentary Under-Secretary of State for Scotland

May I seek clarification from the hon. Gentleman? Why are he and his colleagues tabling amendments that do not appear in the Scottish Parliament’s legislative consent motion Committee? For example, they are tabling an amendment proposing to devolve the matter of especially dangerous airguns to the Scottish Parliament, even though that was not the unanimous view of the Committee. If he respects the view of the Committee, why is he tabling such amendments?

Photo of Dawn Primarolo Dawn Primarolo Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. I know that the Minister is eager to debate airguns, but perhaps he could wait until we get to the relevant clause? Meanwhile, I am sure that Mr Wishart was going to stick to clause 1 and this group of amendments.

Photo of Pete Wishart Pete Wishart Shadow SNP Spokesperson (Culture and Sport), Shadow SNP Spokesperson (Constitution)

I am grateful to you, Ms Primarolo. That is exactly what I was going to do. May I just say to the Minister, however, that we will introduce and propose our own amendments? His problem as a Minister, and the problem for all the Calman commission parties, is that they have no opportunity to table their own amendments relating to the recommendations of the Scottish parliamentary Bill Committee. There has been no opportunity to do that because we got the Bill Committee’s report only on Friday morning.

Photo of David Mundell David Mundell The Parliamentary Under-Secretary of State for Scotland

I do not want to exceed my role, but the hon. Gentleman will be aware that it will be possible to discuss any further amendments arising from the Scottish Parliament’s consideration of the Committee’s report on Report in this House.

Photo of Pete Wishart Pete Wishart Shadow SNP Spokesperson (Culture and Sport), Shadow SNP Spokesperson (Constitution) 5:00 pm, 7th March 2011

That answers one of the questions that I was going to put to the Minister, which is when are we going to see those amendments? How are they going to be introduced? If they are all to be tabled on Report, we will need a little more time to discuss them than is currently available. It would be unacceptable for them to be tabled in the unelected House of Lords. It is the responsibility of directly elected Members of Parliament to discuss those issues, and we should have the opportunity to do so. Those amendments should not be tabled in the House of Lords; they should be discussed on the Floor of this House. We should also have more time on Report, if that is when we will see those important amendments arising from the Scottish Parliament’s Bill Committee.

Photo of Stewart Hosie Stewart Hosie SNP Chief Whip, SNP Deputy Leader, Shadow SNP Spokesperson (Treasury)

My hon. Friend will have noticed the Minister saying that there would be time later—perhaps on Report—for the consideration of any amendments that follow the LCM Committee’s recommendations. However, during earlier exchanges the Secretary of State was nodding when my hon. Friend was confirming that the Government would not be bound by the LCM Committee’s recommendations. Will he now press the Government to confirm that if the LCM Committee proposes serious amendments or makes recommendations that would improve the Bill, they will accept them?

Photo of Pete Wishart Pete Wishart Shadow SNP Spokesperson (Culture and Sport), Shadow SNP Spokesperson (Constitution)

My hon. Friend poses an important question for the Minister. That is what we need to hear: are the Government of a mind to accept those recommendations? [ Interruption. ] The Secretary of State is saying no. That is very clear. This is not an issue just for me; it is an issue for all my colleagues in the Chamber. This was supposed to be a process that started in the Scottish Parliament, but now that recommendations have been made, the Secretary of State is saying that he is not of a mind to accept them all. Perhaps he could give his view on what he is prepared to bring forward and what he is not prepared to bring forward.

Photo of Michael Moore Michael Moore The Secretary of State for Scotland

If I may repeat what I said to the Chair of the Select Committee on Scottish Affairs and the Scottish Parliament’s Committee, we are already actively considering all the different proposals that have come forward from what is an excellent and serious report. We are taking it seriously and we will bring forward our thoughts on it at the appropriate moment, with time for plenty of scrutiny both here and in another place.

Photo of Pete Wishart Pete Wishart Shadow SNP Spokesperson (Culture and Sport), Shadow SNP Spokesperson (Constitution)

That is a helpful contribution from the Secretary of State, but perhaps when the Minister winds up he could tell us when we will see those amendments, where they will be introduced and when elected Members of this House will have the opportunity to debate them.

I bring all this up because the Scottish Parliament’s Bill Committee makes an important recommendation in relation to the proposals for electoral administration. What we see in new clause 1 is the partial devolution of some administrative responsibilities—not all, as was recommended in the Calman report—from the Secretary of State to Scottish Ministers. The Scottish Parliament’s Bill Committee said that two more areas should be added, covering the disqualification of Members and arrangements for elections to the Scottish Parliament. The Committee made those proposals, but we have not had the opportunity to debate them because we have not seen any amendments.

Why is that important? It is important because of recent experience. We have to go back only four short years to find out what can happen in electoral administration, when more than 140,000 of our fellow citizens were effectively disenfranchised. They lost their ability to vote because of how the Labour party, which was then administering the Scotland Office, failed to discharge its obligations and responsibilities seriously and sensibly. Some 140,000 people lost their votes in the last Scottish Parliament elections. To be fair to the former Labour Scotland Office, a number of problems with that election were identified. To the previous Government’s credit—I acknowledge this—they brought in Ron Gould to look at what went wrong and perhaps make recommendations to ensure that it never happened again.

Photo of Jim McGovern Jim McGovern Labour, Dundee West

Is the hon. Gentleman aware that one of the concerns raised was about putting the words “Alex Salmond for First Minister” on the ballot paper?

Photo of Pete Wishart Pete Wishart Shadow SNP Spokesperson (Culture and Sport), Shadow SNP Spokesperson (Constitution)

I accept that, and I said that the failings identified were not just those of the then Labour Scotland Office, although it was in charge of the process and the buck stopped there. Ron Gould identified a number of issues in his report. One of the key things that he identified was fragmentation and a disparity in responsibilities between this House and the Scottish Parliament. He made the strong suggestion that all responsibilities and arrangements for Scottish Parliament elections should be in one place, under one jurisdiction, and he gave the strongest possible hint that that should be the Scottish Parliament. The Scottish Parliament considered the Gould report back in January 2008. Its Members were unanimously of the view that all electoral administration, including competence for elections, should be in one place, and they made it clear that that place should be the Scottish Parliament.

Photo of David Mundell David Mundell The Parliamentary Under-Secretary of State for Scotland

Will the hon. Gentleman acknowledge that as one of Ron Gould’s recommendations was that there should be no overnight counts, perhaps he was not right about everything?

Photo of Pete Wishart Pete Wishart Shadow SNP Spokesperson (Culture and Sport), Shadow SNP Spokesperson (Constitution)

I am more than happy to acknowledge that Ron Gould was not right about everything, but I think most Members accepted the broad thrust of his report’s recommendations in respect of the structural problems that arose in the 2007 election. One of his recommendations was that all responsibilities for elections should lie in one House, and he gave the strongest possible hint that that should be the Scottish Parliament. Our new clause 5 proposes precisely that. It brings together all aspects of electoral administration and legislative competence and places them with the Scottish Parliament, which is where they should be. We believe that that is the case not only because about 140,000 people lost their votes in 2007, but because it is the normal way of things. Any self-respecting Parliament should be in charge of its electoral arrangements. With election to office comes accountability, and we strongly believe that all arrangements to do with elections should be the responsibility of the Parliament that has been elected on the basis of those arrangements.

I accept that the Bill’s proposals represent an improvement on current arrangements. I welcome the fact that it devolves certain administrative functions to Scottish Ministers—indeed, I welcome any transfer of powers to the Scottish Parliament—but it does not even devolve all aspects of electoral administration, as recommended by the Calman commission. That would still give the Secretary of State powers over voter registration, the rules on the composition of Parliament, the procedure for filling any regional seat vacancy during the life of the Parliament, and rules relating to disqualification.

Scottish Ministers would still need to approach the UK Government if primary legislation were required on the date of elections, for example, or even on the voting system, which is an issue that I know greatly exercises many Labour Back Benchers. The Scottish Parliament’s role would also be limited to approving or disapproving rules made by Scottish Ministers, and it would have no opportunity to shape them through its own primary legislation. Furthermore, the Bill would require that Scottish Ministers must consult the Secretary of State before making any of these rules.

Photo of Michael Connarty Michael Connarty Labour, Linlithgow and East Falkirk

The hon. Gentleman has said something that jarred with the logic of his argument. He is obviously speaking about an independent country that has its own Parliament when he says that the Parliament should decide the electoral system. Does he not accept that as this Westminster Parliament is sovereign, it is right that we decided the system—although I do not agree with it, in particular the additional Members who were added instead of bringing the numbers down to the figure proposed in the first Bill? Does he not accept that it is right that this sovereign Parliament should decide how people are elected to the devolved Parliament, as the reality is that we do not have an independent Parliament in Scotland?

Photo of Pete Wishart Pete Wishart Shadow SNP Spokesperson (Culture and Sport), Shadow SNP Spokesperson (Constitution)

Of course the hon. Gentleman and I differ as to how we would like this whole process to develop and the sort of Scotland we would like in the future, but my view is still very much that any self-respecting Parliament worthy of that name must be responsible for its own arrangements. That is just how things are done, and I believe the Scottish Parliament should have that responsibility.

Photo of Brian H Donohoe Brian H Donohoe Labour, Central Ayrshire

Why, therefore, have the hon. Gentleman’s colleagues north of the border in his Scottish Parliament not processed the whole question of having a referendum on what he is talking about?

Photo of Pete Wishart Pete Wishart Shadow SNP Spokesperson (Culture and Sport), Shadow SNP Spokesperson (Constitution)

Actually, I have had a look at the calendar, and I see that there is to be an election in about eight short weeks’ time, when these very issues will be debated and voted on. I also foresee a groundswell of support for the position I am advocating and a diminution in support for the hon. Gentleman’s position.

Through our amendment, we intend to fulfil the general drift and thrust of the Gould report recommendations, and to implement what has already been established in the major recommendation of the Calman commission report, which comes close to what the Scottish Parliament’s Scotland Bill Committee is proposing. The amendment also puts the voter at the heart of the process, because that is what is required. The interests of the voters come first, and they were short-changed and badly let down by what happened four years ago. Radical work was required in order to address that, and thank goodness we have the work and recommendations of Ron Gould.

I see no good reason why Westminster should remain in charge of Scottish elections; I see only the predictable knee-jerk response that this place needs to have some sort of say and role in Scottish elections. To devolve not even all the administration of Scottish elections, as was suggested by Calman, is bewildering and contrary to everything proposed. The Scottish Parliament’s Bill Committee is now saying that the devolution of administrative functions is not good enough and the Secretary of State needs to look at this again. The Committee went even further and said that before we even implement clauses 1 and 3 the Scottish Parliament and Scottish Government should be consulted and we would review this once again. It also raised many of the Electoral Commission’s concerns in respect of the electoral management board—that is currently going through the Scottish Parliament.

For all those reasons, I ask the Minister to re-examine this clause to see what can be done. Let us have a proper debate about what the will of the Scottish Parliament’s Bill Committee is and what Calman intends in all this. Let us give proper constructive consideration to ensuring that all arrangements to do with elections, be they about electoral administration or legislative competence, can be moved to the Scottish Parliament. I ask hon. Members to support new clause 5.

Photo of Anne McGuire Anne McGuire Labour, Stirling

I am delighted to support amendment 10. It would be disappointing if we judged whether or not it was valid on the basis of what happened during the previous Scottish Parliament elections. I am sure that many hon. Members in the Chamber can come up with a compendium of reasons why that count was a disaster. All political parties in this House have to accept some responsibility for the ballot paper, which has been identified as one source of the problem, because we all consented to it. We also put our faith, wrongly, in an IT system that did not work. We could perhaps accept that there is an excuse for its not working, given the complications involved in a Scottish Parliament election as a result of different votes being counted, different constituencies and so on, but that same IT system was tried out in a local council by-election in my constituency and it took us nearly five hours to get the result. The only good thing was that this occurred in the full presence and glow of the electoral commissioner with responsibility for Scotland, John McCormick, and his senior members of staff. They realised then, if they had not already done so, that that electronic system of counting was not yet usable for future elections.

It would therefore be unfortunate if we said that one of the reasons why we do not want overnight counts relates to that disastrous night, although Pete Wishart is right to identify the number of ballots that were lost—people’s votes that were lost. Ron Gould fell into the trap of stating that that was the reason why overnight counts were not wanted. He did not look beyond a particular set of circumstances on a particular evening when a series of issues arose that, in retrospect, could perhaps have been dealt with differently.

I have been astonished by the reaction of returning officers. For most of my political life, they have been able to deliver an overnight count without any great anxiety about whether or not staff had to work overnight, yet they have suddenly decided, in their wisdom, that they do not want to accept the responsibility of an overnight count. It came as a surprise to many of us before the last election that what we thought was a given—an overnight count—was no such thing. We then discovered that returning officers had it in their power to decide when they wanted to count an election for this or any other House. With the greatest respect to returning officers across Scotland, I do not think it should be their responsibility to decide when the count should take place. It is for this Parliament to decide when an election count should take place and I hope that the Government will consider the amendment seriously and will look at how they engage with returning officers, because, as we found out before last year’s general election, custom and practice will not be good enough.

Photo of Brian H Donohoe Brian H Donohoe Labour, Central Ayrshire 5:15 pm, 7th March 2011

I wonder whether returning officers would be so keen on that if they were to forgo their wage for the election if it was to be held during office hours.

Photo of Anne McGuire Anne McGuire Labour, Stirling

Knowing my hon. Friend’s grasp of the political minutiae of local government and returning officers, I am sure there is deep insight in those comments, but I am not quite sure what it is at the moment—unless he wants to explain his point in a way that I might understand.

Photo of Brian H Donohoe Brian H Donohoe Labour, Central Ayrshire

I thank my right hon. Friend for giving way again. If returning officers are going to work office hours to do the count, rather than overnight, they should not get any additional money. In those circumstances, perhaps we would save money if we moved the count.

Photo of Anne McGuire Anne McGuire Labour, Stirling

I understand now exactly where my hon. Friend is coming from, and I am sure that he would never have put forward that argument when he was a full-time officer of the National and Local Government Officers Association, but I will let that one stick to the wall.

There are all sorts of reasons why we should insist on an overnight count. Sometimes, we say that there is disillusionment in politics, but one area of excitement, even if it is only mini-excitement, is in waiting for the overnight count, and that is not just for apparatchiks and anoraks such as ourselves in the House. I think you would be amazed, Ms Primarolo, how many people like to listen and wait for election results to come in. Indeed, the figures show that.

Photo of Ian Davidson Ian Davidson Chair, Scottish Affairs Committee

May I confirm my right hon. Friend’s point about excitement? I remember wondering last Thursday, or in the early hours of Friday morning, “Will the Liberals come second or third in Barnsley, or will they come fourth or fifth?” But then, ecstasy of ecstasies, it turned out that they came sixth. The excitement built throughout the night, and that is why it is essential to have a count overnight.

Photo of Anne McGuire Anne McGuire Labour, Stirling

I could not agree more. I not only waited until the television report had nearly finished, but then went upstairs to listen to the result coming through on Radio 5, and then promptly fell asleep.

Photo of Anne McGuire Anne McGuire Labour, Stirling

Indeed, but I was delighted that when I awoke, what I at first thought was a dream was in fact reality—Labour had not only won that by-election but had won it with an increased majority and an increased percentage of the poll, and a member of the coalition parties had come further down. However, I see that I am taxing your patience a little, Ms Primarolo.

I want to highlight the Electoral Commission’s comments. I am a wee bit surprised by the attitude it has taken in not supporting overnight counts, and I feel it has based its assumptions on what happened in the last election, four years ago. It makes a good point in saying that returning officers should not be expected to conduct parallel counts for the first-past-the-post and regional lists, but it is a bit disappointing that it has not recognised that part of the culture of elections in this country, and in many others, is sitting and waiting for the overnight results to come in. That happens in American presidential elections and others.

Photo of Eleanor Laing Eleanor Laing Conservative, Epping Forest

Does the right hon. Lady agree that although the excitement is certainly important to people like us who are involved in these matters, it is not just a matter of excitement and media presence? It is also about good electoral governance, good management of the electoral process and bringing conformity right across the country. Last year, we discovered that returning officers had held themselves responsible for what happened in their area and that many of them refused to be told or to behave in the way that the Electoral Commission thought they should. Is it not therefore up to this Parliament and the Scottish Parliament literally to lay down the law so that there is conformity of action in every election taking place at the same time?

Photo of Anne McGuire Anne McGuire Labour, Stirling

The hon. Lady makes a valid point. Like her, I do not want to overplay the excitement, in spite of our reflections on last Thursday night, because sometimes we can get carried away with that.

The continuity of the election process and the election day is important. The election day does not finish until there is a declaration of the count. It is also necessary to give people the confidence that when they put their vote in a ballot box, which is sealed, it is resealed at the close of play and transported immediately or as quickly as possible—if the two are not mutually exclusive—to the count. Part of our historic attitude to elections is the speed with which we can get the individual’s vote from the place in which it was cast to the place of the count.

We should recognise that, for the most part, we are not talking about transporting ballot boxes in the depth of winter. These elections are conducted in the spring. I have a constituency which, as some colleagues are no doubt fed up with my telling them, is the size of Luxembourg. I know that Mr MacNeil has a constituency that extends far wider than that, but in the case of my constituency, we are talking of a distance of some 65 miles, and I have never heard of any difficulties in transporting the ballot boxes in reasonable time from outlying villages such as Tyndrum in the most northerly part of the constituency down to Stirling for the count.

Photo of Angus MacNeil Angus MacNeil Shadow SNP Spokesperson (Transport), Shadow SNP Spokesperson (Constitutional Reform), Shadow SNP Spokesperson (Scotland)

Although I am enjoying the marvellous nostalgia of election night, does the right hon. Lady see any role for electronic voting, which would give an instantaneous result?

Photo of Anne McGuire Anne McGuire Labour, Stirling

I am not into the Simon Cowell approach to voting. Some of our younger colleagues who entered the House at the last election might see that in the future, but I do not have as much confidence in voting by mobile phone as the hon. Gentleman may have. We must make it as easy and straightforward as possible for people in varying circumstances to cast their vote. That is why the extension of postal voting has been such a welcome addition.

We should consider seriously the way in which the House wants to see its elections and the count of those ballots conducted. I would be disappointed if we based all our analysis on the situation that arose four years ago. It was an unusual situation. There was a coincidence of circumstances which made the count difficult. If the Government are serious about achieving consensus on a major constitutional issue, I hope they will not just rely on the good will of electoral returning officers, but take account of the will of the House, which is, I hope, to count our ballots overnight for the Scottish Parliament elections.

Photo of Michael Connarty Michael Connarty Labour, Linlithgow and East Falkirk

It strikes me that all political parties are like Simon Cowell—they want the person they own to win whatever campaign they are involved in, so we have a vested interest, although I would not go as far as Mr MacNeil might go.

My right hon. Friend Mrs McGuire was right about the myths regarding the errors of 2007, as if it was all down to the ineptitude of the Scotland Office at the time, or of the returning officers. It is clear that the complication in 2007 was the counting of two ballots for two different purposes on two different mandates, combined with the construction of a ballot paper that did not make sense to the elector and clearly, in the count that I watched at great length until I retired to bed at about 4 am, was not fully understood by the returning officer in my area.

Photo of Angus MacNeil Angus MacNeil Shadow SNP Spokesperson (Transport), Shadow SNP Spokesperson (Constitutional Reform), Shadow SNP Spokesperson (Scotland)

To be clear, by electronic voting I do not mean the Simon Cowell, light entertainment version, but the serious version used in many countries around the world.

Photo of Michael Connarty Michael Connarty Labour, Linlithgow and East Falkirk

I know a little about that, as my son lives in Australia, which has a totally electronically registered electorate who all must register and vote. He travels a great deal all over Australia with his job and finds absolutely no difficulty in voting, because he can pop into any electoral office in any town at any time up to three weeks before a ballot and cast his vote for the area in which he lives, so it is a very sensible system. It is surprising that we have not caught up with the technology. It would certainly be a great advantage if we did, as that might engage people much more in the ballot.

The idea that we had a problem because we counted overnight is wrong. Although those of us who soldiered on might not have been quite as excited by the process as my hon. Friend Mr Davidson, it was clear to us that the muddle was created by there being two ballot papers. The other question relates to the training of returning officers, because I do not think that the returning officer I watched was competent enough to deal with the ballot, and some crazy errors occurred. For example, he did not tell a candidate who had lost in a council election going on at the same time that he had lost by one vote. The candidate did not discover that until the next day and so was not allowed a recount. Whether that was the result of incompetence, or just the fact that the returning officer was so fatigued that he wanted to get home to his bed and not have another recount in that crazy system running parallel to the Scottish election is another problem.

Pete Wishart seemed to argue that at whichever level an election takes place—Scottish Parliament level or UK Parliament level—that level should have control over its own type of ballot. By that argument, local councils would be put in charge of their elections and allowed to decide all the things that have been argued for, including exactly who would be elected, how they would be elected and what the franchise would be. That is a nonsense. Presumably for Scottish Parliament elections it would be the First Minister who decides, certainly in the present Scottish Government, as only one person seems to make all the decisions in that Government. Those aspects must be determined by the level above that being elected. For example, the Scottish Parliament, quite correctly, controls the methodology for local elections, just as this sovereign Parliament, which set up the Scottish Parliament, should decide if it wishes to change that, possibly in negotiations. That is not saying that there is not a dialogue to be held, but the idea of putting it down does not make much sense.

Therefore, I support the amendment. As my right hon. Friend the Member for Stirling said, the important point is that when people put their ballot papers in the ballot box, they expect it to be transported securely to the place where they are to be counted. One of the reasons why that was set up for UK elections was to let people know that ballot boxes are not stored somewhere else where they might be tampered with, so there is no split between the process of voting and the process of counting. To push that back to the next day is to add to people’s cynicism about how elections are conducted and how the count comes out.

It is clear to me that the lesson we should learn from 2007 is that we should not have two counts on the same evening. Therefore, we should not have the two processes of electing representatives and choosing the method of election at the same time. That argues strongly against the Government’s proposal to have a referendum on a voting system on the same day as the Scottish elections, because that is asking people to postpone the count for the electoral amendment to the next day. It might be fine, because I think that it will be the great yawn of the century—I can just see people getting as excited as my hon. Friend the Member for Glasgow North about exactly what little deviation in the electoral system they will be allowed in the process of choosing which system to use.

Photo of Ian Davidson Ian Davidson Chair, Scottish Affairs Committee

My constituency is Glasgow South West.

That was not a deviation. Was it not a major result? One of the country’s governing parties came not even second in a by-election, and not even third. If I remember correctly, it was not even fourth or fifth. [ Laughter. ]It is indeed laughable that it came sixth. I believe that it beat the Loonies, but only barely because there was some blurring at the edges. Is that not worth being excited about?

Photo of Michael Connarty Michael Connarty Labour, Linlithgow and East Falkirk

Obviously, my hon. Friend is the Member for Glasgow South West, and I do apologise to my hon. Friend Ann McKechin, who has offices across the corridor from me. I should really remember that.

A change to AV would not have helped the Liberal Democrats in that election, and any such change will probably not help them in the future, either. The point that I am trying to make is a very serious one, however. To have two different ballots, a referendum on a voting system and a vote for an elected chamber, is to mix up the purpose and focus of the electorate on that day, but that might be the reason behind it all. The possibility of not coming sixth and getting a few votes as the minor party in the coalition might be the reason for holding the two ballots on the same day, but that certainly argues for splitting the process. In the proposals before us, we say that the count for the Scottish Parliament should take place overnight, which is quite correct—and basically no one really cares what happens to the referendum.

Photo of Ian Davidson Ian Davidson Chair, Scottish Affairs Committee 5:30 pm, 7th March 2011

We have to ask ourselves a fairly simple question about when the count is held: for whose convenience are elections run? There is a view, very strongly held, that elections are run for the convenience of returning officers. I do not take that view; I tend to think that people generally want elections run for their convenience. A tradition has developed over a long period, whereby those who do not follow an election overnight wake up in the morning and hear the result, and I see no good reason why we should not make that stipulation. Of course professionals and those who are competent at, and have experience in, running elections should have a say in how polls are carried out, but they should not be the tail that wags the dog.

That is one of the issues, however, because if we have an election management board, with the role of the Electoral Commission being brought into question, it must be under democratic control; it must not be self-employed and able to set its own rules according to its own convenience, because its view of what is best will often be determined by self-interest.

I understand, however, that the Government are about to announce a change in the rules about the announcement of by-elections, so that when the Government, particularly the minority governing party, have a successful result along the lines of that in Barnsley, it will be announced some two days after hell freezes over. That does not seem to be an appropriate outcome. Not only did the junior partner in the coalition—this cuts coalition—come sixth; it has been suggested that it came sixth only because the Scottish National party was not standing, and that support for the SNP in Barnsley would have been far greater than that for the Liberals. I can understand that.

I was interested to see that the UK Independence party—basically the British National party with suits—beat the Conservatives, which again tells us something significant. People do find that quite exciting and stimulating. I want to ensure, however, that the Government’s position is that two ballots should not be conducted at the same time, because, unless the Government change their mind, the Scottish Parliament elections and the AV referendum will be held on the same day. I hope that we can secure the commitment that they will be counted separately, because most of us want to see the Liberals get a kicking twice, and it would greatly spoil our enjoyment if the results came out at the same time. People in Scotland want to be able to say no to separation, no to cuts, no to the coalition and no to AV, and they need the announcements to be clearly separated.

Finally on the issue of delay, I am old enough to have read about John F. Kennedy’s presidential election. The result turned on Illinois, and in Illinois the result turned on Chicago. Chicago, despite being an urban area, was about the last area to announce its vote, because the Democrats held the results back until they found out how many votes they needed to win that state and, hence, the American presidential election. Thankfully, we have always been free of any such suggestion in this country, but it will be considered a possibility if there is any undue delay. It is therefore important to proceed with the count as quickly as possible.

I would like to remind people of the excitement that they, too, felt when they heard the result of the Barnsley by-election. I do not know whether I have mentioned this, but the junior partner in the coalition did not come anywhere close; in fact, it was sixth. I do not have the figures with me, but I suspect that it was only the votes of a couple of households, and the fact that the SNP did not stand, that stopped it coming 10th out of nine candidates.

Photo of David Mundell David Mundell The Parliamentary Under-Secretary of State for Scotland

I welcome you to the Chair, Mr Evans. It is always a pleasure to follow the Chairman of the Scottish Affairs Committee. I thank the hon. Member for Rutherglen and Hamilton West (Tom Greatrex) for his good advice, which, as he said, he garnered during his sentence at the Scotland Office.

While Ms Primarolo was in the Chair, Mr Evans, I tried to seek some guidance on the SNP position in respect of this Bill, because, as those of us who were present during its Second Reading will know, the SNP declared it to be unacceptable. However, I am afraid that that clarity was not forthcoming.

Photo of Pete Wishart Pete Wishart Shadow SNP Spokesperson (Culture and Sport), Shadow SNP Spokesperson (Constitution)

Does the right hon. Gentleman agree that it is not only the case that the SNP found the Bill in its current, unamended form to be unacceptable, but that the Scottish Parliament’s Bill Committee made many recommendations that have significantly improved it?

Photo of David Mundell David Mundell The Parliamentary Under-Secretary of State for Scotland

The hon. Gentleman mentions the Bill Committee. I sought from him, and again he refused to answer, clarification on whether he would accept that Committee’s report, and whatever the vote of the Scottish Parliament is, rather than pursuing amendments that even his colleagues on the Committee did not pursue.

Photo of Pete Wishart Pete Wishart Shadow SNP Spokesperson (Culture and Sport), Shadow SNP Spokesperson (Constitution)

The right hon. Gentleman’s colleague, the Secretary of State of State for Scotland, has said to me and to this House that he is not of a mind to accept all the recommendations from the Scottish Parliament’s Bill Committee. How can we make up our minds if he does not tell us what is and is not going to be accepted?

Photo of David Mundell David Mundell The Parliamentary Under-Secretary of State for Scotland

The Secretary of State made it clear in his written ministerial statement that the Government will give serious consideration to all the amendments and issues raised in the Bill Committee because we respect the work of that Committee and the work of the Scottish Parliament; we do not pick and choose to meet our own political ends.

Photo of Angus MacNeil Angus MacNeil Shadow SNP Spokesperson (Transport), Shadow SNP Spokesperson (Constitutional Reform), Shadow SNP Spokesperson (Scotland)

Is the right hon. Gentleman accepting or steamrollering the will of the Scottish Parliament’s Bill Committee?

Photo of David Mundell David Mundell The Parliamentary Under-Secretary of State for Scotland

The Government are looking forward to the debate in the Scottish Parliament later this week when it will consider the legislative consent motion coming forward from the Bill Committee. It will be very interesting to see how the SNP votes in that debate.

Clause 1 transfers to Scottish Ministers certain Executive functions relating to the administration of Scottish Parliament elections that are currently the responsibility of the Secretary of State. Members will wish to note that the Bill Committee in the Scottish Parliament accepted this provision in its report on the Bill. However, as has been mentioned, the report also asked for consideration of a number of related issues such as the procedure for filling any regional seat vacancy during the life of a Parliament, the rules relating to disqualification, and reciprocal consultation. I wish to reaffirm that the written statement from the Secretary of State makes clear our commitment carefully to consider those recommendations, including those relating to this clause. The Scottish Parliament will vote on the Bill on Thursday, and we await the outcome of that vote.

The clause will enable Scottish Ministers to make general provision by order for the conduct and administration of elections to Holyrood, subject only to some necessary constraints. This power includes making provision about supply or otherwise dealing with the electoral register, the combination of Scottish Parliament elections with other elections falling within the legislative competence of the Parliament, and limitation of candidates’ election expenses. However, some elements of the powers will remain the function of the Secretary of State—that is, the franchise and the power to combine Scottish Parliament elections with other reserved elections. That will ensure that issues of constitutional importance continue to be dealt with by the UK Parliament. The Scotland Bill Committee in the Scottish Parliament recognised and accepted the continued reservation of those matters.

Amendment 10, as the hon. Member for Rutherglen and Hamilton West said, would require Scottish Ministers’ first conduct order under the new powers to include provision requiring returning officers to start the count at Scottish Parliament elections within four hours of the close of the poll, or to publish a statement explaining why they were unable to do so. It is important to clarify at this point that the amendment would not apply to the 2011 Scottish Parliament elections.

I recognise the strength of feeling on this issue, which has been set out eloquently by Mrs McGuire, Michael Connarty and my hon. Friend Mrs Laing. The drama and excitement of election night and the wish to know the election result as soon as possible are vital parts of our political heritage. I want returning officers to listen to what has been said in this debate. As hon. Members who represent Scottish constituencies know, Mary Pitcaithly, the chairman of the Electoral Management Board for Scotland, will be available to Scottish MPs to discuss the arrangements for the forthcoming Scottish elections at a meeting at the Scotland Office later this week. I am sure that the point about overnight counts will again be forcefully made.

In a recent response to the hon. Member for Rutherglen and Hamilton West, I suggested that he and his colleagues should lobby for overnight counts. I had noticed that the counts in Conservative-led council areas such as Dumfries and Galloway, Scottish Borders and South Ayrshire were scheduled to be overnight counts, and that Labour predominated in the council areas that were on the list of counts scheduled to happen the following day. I therefore thought that he might be able to bring more influence to bear than I in those areas.

Photo of Cathy Jamieson Cathy Jamieson Labour, Kilmarnock and Loudoun

I hear what the Minister is saying, but does he not agree that the best way to ensure that overnight counts take place is to pass the amendment and put it in the Bill, rather than simply exhorting to people and leaving the discretion to them?

Photo of David Mundell David Mundell The Parliamentary Under-Secretary of State for Scotland

The hon. Lady cannot have heard me say that the amendment would not apply to the 2011 election. I am surprised that she, of all people, takes the view that when we are devolving powers to the Scottish Parliament on this matter, we should curtail them. Once the powers have been devolved, it will be perfectly possible for the Scottish Parliament to take account of the representations that have been made from certain quarters, where there is clearly an equally strong feeling about overnight counts. Passing this amendment would be contrary to the spirit of devolving responsibility for these matters to the Scottish Parliament. I certainly hope that we will not see support from the Scottish National party for such curtailment of a newly devolved power.

Photo of Ann McKechin Ann McKechin Shadow Secretary of State for Scotland

Does the Minister agree, given the strength of feeling that has been clearly shown across the Committee this afternoon, that this matter should be left to a free vote for Government Members? This point elicits a great deal of excitement and passion among Members, so it would be appropriate to deal with it on the basis of Members’ own judgment, rather than on a party political basis.

Photo of David Mundell David Mundell The Parliamentary Under-Secretary of State for Scotland

From the hon. Lady’s experience of the Scotland Office, she will know that this is a debate not about the merit of overnight counts, but about whether the Scottish Parliament, in gaining new powers over the administration of elections, should have those powers constrained in respect of an election that is likely to take place in 2016.

It is not about the count on the night of 5 May 2011. I advise the hon. Member for Glasgow North and other Labour Members to come along and speak to Mary Pitcaithly later this week and reinforce the strength of feeling that exists for overnight counts for elections to the Scottish Parliament.

Photo of Ian Davidson Ian Davidson Chair, Scottish Affairs Committee 5:45 pm, 7th March 2011

Does the Minister believe that it is right that elected Members of Parliament should have to lobby an unelected bureaucrat about the way in which the elections should be conducted? I appreciate that the change in the rule will not apply to this year’s elections, but it is unfortunate that we have got ourselves into a position whereby the best that the Minister can suggest is that we go along and lobby a bureaucrat, no matter how worthy.

Photo of David Mundell David Mundell The Parliamentary Under-Secretary of State for Scotland

The hon. Gentleman will recognise that since it was first suggested that few overnight counts would take place in Scotland for the election of 5 May, the number has grown significantly, partly because of the expression of public opinion. Today’s debate and some of the eloquent contributions that we have heard will further reinforce that. Passing the amendment this evening will not move the matter forward because it will have no impact on the count.

Photo of Anne McGuire Anne McGuire Labour, Stirling

Would not it be a clear declaration of intent by the House to the returning officers that we expect them, even in the absence of a legal instruction that they must do it, to hold an overnight count for elections to the Parliament of Scotland?

Photo of David Mundell David Mundell The Parliamentary Under-Secretary of State for Scotland

I trust the Parliament of Scotland to set its own rules for the elections in 2015 or 2016. That is why the Government support devolving the power.

Photo of Anne McGuire Anne McGuire Labour, Stirling

I fear that the Minister may have missed my point. I recognise his legal and technical argument that the matter will be the Scottish Parliament’s responsibility in 2016, but surely some seven or eight weeks away from the potential for counts to be postponed until the next day, we should send out a message from this House that we expect an overnight count.

Photo of David Mundell David Mundell The Parliamentary Under-Secretary of State for Scotland

The right hon. Lady’s comments, those of my hon. Friend the Member for Epping Forest and others will have sent that clear message to returning officers.

Photo of John Thurso John Thurso Chair, Finance and Services Committee

The point at issue is whether the Scottish Parliament should have the right to make those decisions. The Bill grants those powers. The second question is how we get what we all want: an overnight count at the forthcoming election. Does the Minister have any power under other primary or secondary legislation that he could use to make that happen so that we do not send a message, but just make it happen?

Photo of David Mundell David Mundell The Parliamentary Under-Secretary of State for Scotland

I note the hon. Gentleman’s comments, but I believe that we can all play a role in ensuring that it happens through the force of our argument. Again, I invite colleagues to join me and others at the meeting with the chairman of the Interim Electoral Management Board.

Photo of Stewart Hosie Stewart Hosie SNP Chief Whip, SNP Deputy Leader, Shadow SNP Spokesperson (Treasury)

The Minister is doing a stoical job in trying to defend the indefensible, but Mrs McGuire is right. Notwithstanding the fact that we want everything devolved, not just the administration, the clearest signal that we are backing public opinion in wanting an overnight count would be voting for amendment 10 and allowing the Scottish Government to make the decisions thereafter.

Photo of David Mundell David Mundell The Parliamentary Under-Secretary of State for Scotland

I do not know why I should be surprised at the SNP’s voting against more powers for the Scottish Parliament in an attempt at gesture politics, in which its specialises.

The SNP referred to new clause 5, on which we will vote on the third day of Committee proceedings. That would give the Scottish Parliament full legislative competence for the Scottish Parliament elections. That goes far wider than the Calman commission’s recommendation to devolve only the administration of elections. The Government gave careful consideration to the extent of the powers to be devolved on the evidence provided to the commission, and we believe that the proposals in the Bill strike the right balance. Devolving elements of responsibility for the administration earlier, as was outlined earlier, is consistent with the Calman commission’s principle—

Photo of David Mundell David Mundell The Parliamentary Under-Secretary of State for Scotland

This will not be the first time during the Committee’s discussions that I refer to the fact that the SNP declined to take part in the deliberations of the Calman commission, and indeed set up its own national conversation. Many issues on which SNP Members now claim outrage could have been fully debated if they had raised them at that time. The Bill is based on the recommendations of the commission.

Photo of Stewart Hosie Stewart Hosie SNP Chief Whip, SNP Deputy Leader, Shadow SNP Spokesperson (Treasury)

The Minister says that the SNP declined to take part in Calman. He will, I am sure, want to confirm for the record that the Government refused to accept all the Calman recommendations, and that the Bill does not go even as far as Calman suggested it should.

Photo of David Mundell David Mundell The Parliamentary Under-Secretary of State for Scotland

Given the hon. Gentleman’s thorough research into all matters on which he speaks, I am sure he has read in detail the Command Paper that accompanied the publication of the Bill, in which the Government set out their response to each and every Calman recommendation, and how, whether in legislation or otherwise, those are being taken forward.

Government amendment 29 to clause 3 is technical and ensures that when Scottish Ministers make orders about the administration of Scottish Parliament elections, they can include the type of technical supplementary provision set out in section 113 of the Scotland Act 1998. For example, Ministers could make different provisions for different purposes or make consequential or savings provisions. The amendment also ensures that any criminal penalties imposed in such an order are subject to the appropriate limits. It gives Scottish Ministers the same supplementary powers and constraints as currently apply to the Secretary of State when he makes provision on the administration of Scottish Parliament elections.

I commend clause 1 to the House and urge Tom Greatrex to withdraw his amendment.

Photo of Tom Greatrex Tom Greatrex Shadow Minister (Scotland)

We have had an interesting start to the Committee. The Minister will have heard the concern of Members of both sides of the House at the possibility that overnight counts will not happen. In all candour, it is not good enough for him to stand at the Dispatch Box and suggest that we go and lobby Mary Pitcaithly on Thursday on the matter. We have the opportunity now to set a position that the Minister voted for in relation to elections to this House, which is a perfectly responsible position.

The Minister would do well to listen to Mrs Laing. I apologise to her, because I was unaware that the wording of amendment 10 is borrowed from her. I hope she feels emboldened enough to vote for it. I have heard her argue against the Government on other occasions, but she has felt unable to follow through and vote against them. I hope she has the confidence to do so today.

This issue is at the heart of electoral administration. As I said, at every set of elections, electoral administrators say, “We don’t want overnight counts. We can’t do it for reason A, B, C, D, E or F.” The proof is not in what Ron Gould says, but in what we all witnessed in May last year. If we set a position, the electoral administrators can get on with it. Let us make that clear for the Scottish Parliament elections as well as for other elections.

Question put, That the amendment be made.

The Committee divided:

Ayes 206, Noes 298.

Division number 215

See full list of votes (From The Public Whip)

Question accordingly negatived.

Clause 1 ordered to stand part of the Bill.