Part 7: Election pilots and democratic engagement
112.Part 7 contains various changes in relation to pilot schemes and democratic engagement. Section 39 adjusts existing powers in sections 5 and 6 of the Local Government (Elections) Act 2002 (the “
Section 39 – Pilot schemes under the 2002 Act
113.This section amends section 5 and 6 of the 2002 Act to expand who can propose a pilot scheme, to add a reference to other enactments which may be modified by a pilot scheme, to add consultation requirements and to make consequential amendments.
114.The existing pilot powers in section 5 of the 2002 Act allow a local authority to propose to the Scottish Ministers a pilot scheme for a local government election held in their area. The Scottish Ministers can modify a proposed scheme and implement it by order. A scheme can introduce different provisions regarding voting methods, locations, and counting of votes, as well as candidate election communications. After the relevant elections, the Electoral Commission must prepare a report assessing the scheme's impact on voting, informed decision-making, and ease of use. The report may also address voter turnout, electoral offences, and malpractice. Under section 6 of the 2002 Act, the Scottish Ministers may make permanent changes to election procedures based on the success of pilot schemes. The changes can apply to all local government elections in Scotland or specific types of elections. Such a section 6 Order, if approved by the Scottish Parliament under affirmative procedure, may modify or disapply existing laws.
115.Subsection (2)(a) and (b) of section 39 allow, in addition to local authorities, the Scottish Ministers, the Electoral Management Board for Scotland or electoral registration officers to initiate a pilot proposal. Consultation with the Electoral Commission is a prerequisite to a proposal by any of those persons. The EMB must also be consulted before a proposal is made in all instances, except where it is the person making the proposal. The requirement in section 5(3) of the 2002 Act for a pilot to be likely to facilitate voting or encourage more voting remains (as provided for by the amendments in subsection (3)(e)).
116.Subsection (2)(c) removes the limitation that a scheme may only make provision differing from Representation of the People Acts. This is too restrictive in terms of local government elections in Scotland, given that the Representation of the People Acts are not the only source of electoral law in Scotland. For example, provisions about the conduct of local government elections in section 3 of the Local Government Scotland Act 2004 and the Scottish Local Government Elections Order 2011 which has the rules for those elections, including actions to be taken before the poll and voting procedure. Subsection (2)(g) makes amendments consequential on that.
117.Subsection (2)(d) introduces a restriction to the existing pilot powers in relation to electronic voting. A proposed pilot scheme implemented by an order under section 5 is normally subject to no procedure. However, the new section 5(2A) introduced by subsection (2)(d) ensures that any pilot which concerns electronic voting cannot occur without Parliamentary approval, requiring the order to be subject to the affirmative procedure. The requirement applies if a proposed pilot scheme includes provision where the method used to cast votes involves specifying a voter’s preference by electronic means.
118.Further consequential adjustments are made: by subsection (2)(f), to update the consultation requirements for pilot Orders for the possible different sources of a proposal; by subsection (2)(h) to adjust the recipients of an Electoral Commission report on a pilot scheme; and by subsection (2)(i) to provide a definition of “electoral registration officer”.
119.Subsection (3) adds a mandatory consultation requirement with the Electoral Management Board for Scotland and the Electoral Commission to the Scottish Ministers’ existing powers in section 6 of the 2002 Act to make an order making permanent changes to election procedures following the success of pilot schemes.
Section 40 – Registration of electors pilot provision: power to make temporary provision
120.This section enables the Scottish Ministers to make regulations to make temporary provision about the registration of electors (“registration of electors pilot provision”).
121.A definition of a “registration of electors pilot provision” provides that the pilots are in relation to the registration of persons in the Scottish local government registers only (i.e. the registers used for both local government and Scottish Parliament elections). A non-exhaustive list of the matters pilot provision may cover is provided. This includes provision about the processing of information for and in connection with any matter as regards registration. Any regulations made under this power will not compel UK Ministers or UK public bodies to provide information unless they have consented to take part in a pilot made under this provision. The registration pilots are expected to be run by public bodies only or by bodies with public functions by agreement with the relevant body. The provision therefore does not contain a regime to require enforcement of information sharing for the purposes of a pilot.
122.The section provides that the regulations cannot affect someone’s right to be registered (i.e. matters relating to franchise).
123.As pilots are temporary, regulations made under this power must include a date by which they expire. The Scottish Ministers will only be able to make regulations under this section where a proposal for a pilot has been made and approved in accordance with the section 41.
124.Regulations made under this provision must specify a date before which the Electoral Commission must send a report to evaluate the pilot (details of the evaluation procedure are contained in section 41).
125.Regulations made under this provision are subject to negative parliamentary procedure.
Section 41 – Proposals for registration of electors pilot provision
126.This section provides that the Scottish Ministers may propose a registration of electors pilot after consulting with the Electoral Commission, the Electoral Management Board for Scotland, and other persons they consider appropriate.
127.Alternatively, a pilot may be proposed by the Electoral Management Board, a local authority, or an electoral registration officer, either on their own or jointly, by submitting a proposal to the Scottish Ministers. A local authority and an electoral registration officer are required to consult with the Electoral Commission and the Electoral Management Board for Scotland before submitting a proposal.
128.If a pilot is proposed by a person with authority to do so, other than the Scottish Ministers, the Scottish Ministers may approve the proposed pilot either with or without modifications.
129.A registration of electors pilot may only be put in place where the Scottish Ministers or, where the pilot is proposed by another body (or bodies acting jointly) that body (or bodies), think the provision is likely to facilitate registration by any person or a description of persons or encourage more persons, or descriptions of person, to register.
130.The Scottish Ministers may consult with such persons as they think appropriate to inform their consideration of a proposal submitted by another body with authority to do so. If Minsters do wish to modify the proposal, they must first consult with the EMB and the body (or bodies acting jointly) who submitted the proposal.
Section 42 – Evaluation of registration of electors pilot provision by Electoral Commission
131.This section sets out that the Electoral Commission must prepare a report on the operation of the pilot, send a copy of the report to the Scottish Ministers, any local authority to which the pilot relates, the EMB and any ERO who proposed the pilot (if applicable) and publish the report. This must be done before the date specified in the regulations making the electoral registration pilot provision or such later date as the Commission and the Scottish Minister may agree.
132.The report must cover, a description of the way in which the provision made by the regulations differed from the provisions which would otherwise have applied, a copy of the registration of electors pilot provision, an assessment of the success or otherwise of the pilot provision, the arrangements made under the regulations to assist disabled persons, an assessment of whether persons found the procedures for registration easy to use, an assessment of whether the procedures provided under the regulations led to any incidence of, or increase in, impersonation or other electoral offences or in any other malpractice in connection with elections, an assessment of whether provision similar to that made by the regulations should apply generally, and on a permanent basis, and any other matter relating to the registration of electors pilot provision as the Scottish Ministers may direct.
Section 43 – Power to permanently modify provision about registration of electors
133.This section provides Scottish Ministers with the power to permanently modify electoral law if, following the Electoral Commission’s report, they decide that the piloted provisions or similar provisions should apply generally and on a permanent basis. The power is contingent on the Electoral Commission report recommending that the change should be made generally and permanently.
134.Before laying a draft of the SSI containing the regulations, the Scottish Ministers must consult the Electoral Management Board for Scotland and such other persons they consider appropriate. The Scottish Ministers must lay a copy of the report prepared by the Electoral Commission into the operation of the pilot at the same time as laying a draft of the SSI. Regulations made under this power would be subject to affirmative parliamentary procedure.
Section 44 – Funding to increase democratic engagement
135.This section sets out a new specific financial assistance power to enable the Scottish Ministers to make or give grants, loans, guarantees and indemnities for the purposes of, or in connection with, increasing democratic engagement. This may be in relation to local government elections or Scottish Parliament elections. The purpose for which a grant or financial assistance may be given includes activities which, in the opinion of the Scottish Ministers, are undertaken with a view to increasing or improving registration and participation by voters, candidates, campaigners and others.
136.For example, funding may be given to third parties to run engagement campaigns, or the Scottish Ministers may fund initiatives of its own. Some examples of projects which have been tried in other jurisdictions and which may be considered for funding are things such as digital surgeries connecting councillors and MPs with people, chatbots answering common questions on registering and voting in different languages and videos tailored to different groups giving a “walk through” or other information about a polling station. Grants made by the Scottish Ministers may also include funding automatic voter registration at educational establishments.
137.In considering whether to provide financial assistance under this section, the Scottish Ministers must have regard to the impact of the funded activity or activities in relation to persons with protected characteristics listed in section 4 of the Equality Act 2010.
Section 45 – Scottish Ministers’ power to make provision about elections under the Local Governance (Scotland) Act 2004
138.This section changes the Scottish Ministers’ powers to make legislation for the administration of local government elections to allow that legislation to refer to documents (such as guidance or forms) prepared by other organisations and provide that those documents form part of the rules in relation to local elections.
139.It modifies the general power in section 3 of the Local Governance (Scotland) Act 2004 for Ministers to make provision in secondary legislation in relation to the conduct of local government elections. This power is typically used ahead of every local government election to update the rules for the forthcoming election.
140.Unlike the equivalent power in relation to Scottish Parliament elections (section 12 of the Scotland Act 1998) the local government power for secondary legislation does not allow Ministers to sub-delegate tasks to other bodies. Sub-delegation is when a piece of secondary (or delegated) legislation contains a further delegation of authority to another public body. The modifications made by this section will permit sub-delegation, and that will allow bodies such as the EMB or Electoral Commission to be asked to provide guidance on elections, for example on asking the Electoral Commission to provide guidance on accessibility measures in polling places, as they already do for UK Parliamentary elections in Scotland.
141.Paragraph (a) of inserted subsection (3A) provides that references are ambulatory. This means that the most recently published version of a document referred to will automatically become the authoritative one. For example, Ministers will not need to make a new Order every time that the Electoral Commission updates its accessibility guidance. However, paragraph (b) of this subsection helps Ministers retain control by giving them the power to specify other requirements in an Order which a document must meet before a document is considered authoritative.
Section 46 – Access to elected office fund
142.This section puts the Access to Elected Office Fund on a statutory footing. The Fund has been operating since 2016 on a non-statutory basis. The effect will be to ensure that the Fund continues to support disabled candidates to stand for election in Scottish Parliament and local government elections as long as the provision remains in force.
143.The section provides that the Fund will be administered separately by a person designated by the Scottish Ministers, subject to the Parliament approving that designation in draft by resolution. However, provision is made to allow the existing administrative arrangements for the Fund to continue without re-designating the administrator already chosen.
144.The Scottish Ministers are required to report to Parliament after each ordinary Scottish Parliament election and each ordinary local election on the operation of the Fund.
