Part 11: Electoral Management Board for Scotland
202.Part 11 contains provisions adjusting the constitution of the Electoral Management Board for Scotland (the “EMB”), most significantly giving it a separate legal personality as a body corporate, adding provisions for it to report to the Scottish Parliamentary Corporate Body (“
203.Under section 1 of the 2011 Act, the EMB was given the general function of “co-ordinating the administration of local government elections in Scotland.” Its role was extended by the Scottish Elections (Reform) Act 2020 to include Scottish Parliamentary elections. The functions in relation to those elections include assisting returning officers, local authorities and other persons and promoting best practice. The 2011 Act gives the convener the power to issue directions to returning officers on the running of the local government elections and, as a result of the changes made by the Scottish Elections (Reform) Act 2020, also on the running of Scottish Parliament elections.
204.The convener of the EMB took on the role of chief counting officer in the 2014 referendum and section 7 of the Referendums (Scotland) Act 2020 provides for the convener to be the chief counting officer in any future referendums held under the rules in that Act.
Section 69 – Constitution of the Electoral Management Board for Scotland
205.Subsection (2)(a) provides in section 1 of the 2011 Act that the EMB continues to exist and becomes a body corporate with the same name. The continuation means that the current convener and members of the board will continue to serve in their roles in accordance with their current terms of office. As a body corporate, the EMB will have a separate legal personality and will be able to take actions in its own name, for example entering into contracts. Subsection (2)(b) adds a new section 1(4) to the 2011 Act, making reference to the schedule added to that Act and the further provision on the EMB’s constitution that the schedule contains.
206.Sections 2 (membership), 3 (duration of membership), 4 (procedure of EMB), and 8 (annual report) of the 2011 Act are all repealed by subsection (3) and subsection (5), as specific provision is made in the additions to the 2011 Act elsewhere in this section.
207.Subsection (4) adds a new section 7A to the 2011 Act, which provides for the EMB to prepare a strategic plan every five years, following a national local government election. A draft of the plan will be submitted to the SPCB setting out the Board’s strategic and policy priorities relating to its functions and estimates of the costs involved. The SPCB will scrutinise the strategic plan and can recommend modifications. In doing so it can seek views including from a committee of the Scottish Parliament. The Board will make any modifications it considers necessary in light of the SPCB’s findings and recommendations and then lay the plan before the Scottish Parliament.
208.Subsection (4) also adds a new section 7B to the 2011 Act, which allows Scottish Ministers to request that the Board review and report on any matter relating to the Board’s functions as set out in section 1(3) of the 2011 Act. Before making a request, the Scottish Ministers must consult the SPCB.
209.Subsection (6) adds some new definitions to section 9 the 2011 Act, for the purposes of the new provisions and the new schedule added to that Act by this section.
210.Subsection (7) adds the new schedule to the 2011 Act. The schedule covers various constitutional matters for the EMB—
Status - the Board, its members and staff are not Crown servants or agents.
Membership – the Board is to consist of a convener, who must be either a serving or former returning officer (RO) and 8 other members (appointed by the convener) of whom 5 are to be current or former ROs (or deputes) category, and 3 are to be EROs or former EROs category. This includes ROs an EROs from elsewhere in the UK. Board appointments must take into account a broad range of experience of Scottish electoral regions and cannot include a person with a relevant connection to a political party. A person with a connection to a political party may not be appointed.
The convener – to be appointed by the SPCB on the nomination of the Scottish Parliament and holds office on terms and conditions determined by the SPCB. The other members hold office on terms and conditions determined by the convener, with the approval of the SPCB
Depute conveners – appointed by the convener from the members of the Board for a period (with the approval of the SPCB) of up to 5 years. A RO depute convener will be able to carry out certain of the convener’s functions where the office of convener is vacant, or the convener is incapacitated. The functions are those under the 2011 Act (including power of direction to ROs) and under section 43A of the Representation of the People Act 1983 (in relation to fixing another day for the holding of the poll at an ordinary local election). A second depute can be appointed who is an ERO. They will not be able to exercise power of direction or postponement.
Term limits – the convener and deputes will be able to serve as such for two terms of up to 5 years. Board members may serve terms of up to 5 years, with no limit on number of terms. The approval of the SPCB is needed as regards the duration of the appointments.
Early termination of membership – the convener and other members may be relieved of office at their request. The convener may also be removed from office if the SPCB so resolves. Any other member may be removed from office by the convener if (a) absent, without reasonable excuse from meetings of the Board for a period of longer than 6 consecutive months, or (b) the convener considers that the member is (i) unable to perform the functions of a member, or (ii) unsuitable to continue as a member, or (c) the member becomes connected to a political party.
Remuneration and pensions etc. of convener, other Board members - the SPCB may pay the convener remuneration, allowances, expenses and pensions. The Board may make similar payments to its members with the approval of the SPCB.
Staff – the Board may appoint staff who are to be employed on terms and conditions (including remuneration, pensions, allowances and expenses) as are determined by the Board with approval from the SPCB. Certain restrictions apply on persons who may be appointed.
Advisers and other services – the Boards may seek and pay for specialist advisers and services, although the payments are subject to SPCB approval.
Powers of the Board and validity of actions – the Board may do anything which appears to it (a) to be necessary or expedient for the purposes of, or in connection with, the performance of its functions, or (b) be otherwise conductive to the performance of its functions.
Sharing of premises, staff and other resources – the SPCB may direct the Board to share resources with other public bodies or officeholders.
Budget – The Board must, before the start of each financial year, prepare a budget for the SPCB for approval.
Financial provision – the SPCB is to pay any expenditure properly incurred by the Board in the exercise of the functions of the Board.
Accountable officer – the SPCB must designate an accountable officer.
Accounts and audit - the Board must (a) keep proper accounts and accounting records, and (b) prepare annual accounts in respect of each financial year.
Annual report – the convener must lay an annual report before the Parliament within 7 months of the end of each financial year.
Section 70 – Application of public bodies legislation to the Electoral Management Board for Scotland
211.Section 70 makes provision on application of public bodies legislation to the EMB. It will make the Board subject to Scotland’s freedom of information regime, the Public Services Reform (Scotland) Act 2010 and the Gender Representation on Public Boards (Scotland) Act 2018.
Section 71 – Transitional provision: membership of the Electoral Management Board for Scotland
212.Section 71 makes transitional arrangements in relation to the status of EMB Board members (including the convener) at the point that the Act’s changes take effect. It ensures that Board members continue to hold office and are treated as if that person was appointed for the first time for a period of 5 years on the day that the amendments made.
