28 Mar 2012

Election watchdog’s concern over Scottish referendum

Scotland Correspondent

The Electoral Commission has major reservations about the Scottish government’s plans for a referendum on independence, writes Channel 4 News reporter Ciaran Jenkins.

Electoral Commission finds flaws in Scotland's referendum plans Channel 4 News can reveal (Getty)

The concerns emerge in the minutes of private meetings held by the commission, which have been released to Channel 4 News under the Freedom of Information Act.

They show the watchdog does not believe the Scottish government is proposing to give it the power to have proper oversight of the referendum.

The documents also reveal the electoral commission “does not favour” holding the poll on a Saturday and that it believes it would “not be acceptable” for the Scottish government to test the fairness of the referendum question itself.

The Scottish government originally opposed any role for the watchdog in supervising the vote, which it wants to hold in autumn 2014.

But in January, First Minister Alex Salmond invited the electoral commission to regulate the referendum after all, following assurances it could be made answerable to the Scottish Parliament.

Setting out his plans in a consultation document and draft bill, Mr Salmond said the referendum should meet “the highest standards of fairness, transparency and propriety”.

The electoral commission published its official response to both Scottish and UK government consultations on the issue in March.

However, far greater concerns are expressed in the internal documents released to Channel 4 News.

Regulating the referendum

The Scottish government’s pledge to allow the Electoral Commission to regulate the referendum was seen as a significant step forward in the process.
Until then, it had favoured setting up a new Scottish body to oversee the poll.

But when the Electoral Commission’s most senior officials met in February, they concluded the Scottish government’s proposals did not live up to its promise.

We should make clear that it would not be acceptable for [either] the Scottish Government [or UK Government] to make their own assessment of the intelligibility of a proposed referendum question without independent advice and evaluation. Electoral Commission

The minutes of the meeting, which until now have been kept private, say the Scottish government’s draft bill outlining the referendum “does not fulfil the intention set out in the consultation paper of giving the Electoral Commission a regulatory role”.

They say the proposals fall short of giving it “any equivalent” to powers it has under existing UK legislation, which were used to oversee the 2011 referenda on changes to the voting system and on further powers for the Welsh Assembly.

These include the authority to investigate malpractice and to apply sanctions in the event of election rules being breached.

However, the minutes note the omissions in the bill may be a drafting oversight, and resolve to raise the matter with Scottish government officials.

Making sure the question is fair

Electoral commission board members also expressed considerable concern in private over making sure the proposed referendum question would be fair.

The minutes say: “We should make clear that it would not be acceptable for [either] the Scottish government [or UK government] to make their own assessment of the intelligibility of a proposed referendum question without independent advice and evaluation.”

At the launch of its referendum plans, the Scottish government had said it would “seek advice on the question from electoral professionals,” including the Electoral Commission.

But opponents say this falls short of a proper independent judgement and claim Mr Salmond’s favoured question – “Do you agree that Scotland should be an independent country?” – is biased.

Responding to the new claims, the Scottish government said it and the Electoral Commission were “agreed on the fact that the question should be properly and independently tested”.

Saturday voting

However, there appears to be no agreement, in private at least, on holding the poll on a Saturday, which is one of the options being put forward by the Scottish Government.

The minutes reveal the commission “does not favour” a Saturday vote because of the “considerable logistical challenges that would need to be overcome”.

The revelations have prompted further pressure from the Scottish National Party’s political opponents over its handling of the referendum. Scottish Labour leader Johann Lamont said it would appear “the first minister is determined to ignore independent advice and stack the cards in his favour”.

“The electoral commission is a body respected for its experience, expertise and impartiality on elections and rather than water down its role, Alex Salmond has to ensure it has full oversight of the referendum, including the question,” she said.

The UK government echoed calls for the watchdog to be given a greater role.

The UK government is committed to delivering a legal, fair and decisive referendum and believes the electoral commission should have an official, statutory role as it has had in previous referendums. Scotland Office spokesman

A spokesman for the Scotland Office said the electoral commission had the experience and expertise to report on the question to be put to the people of Scotland.

“The UK government is committed to delivering a legal, fair and decisive referendum and believes the electoral commission should have an official, statutory role as it has had in previous referendums,” he said.

A spokeswoman for the Scottish government said it was looking forward to working with the Electoral Commission and others to develop its proposals before putting them to the Scottish parliament.

“We are happy to work with the commission to ensure that the role to be played by the commission is put on an appropriate statutory basis,” she said.

The Scottish government’s consultation ‘Your Scotland, Your Referendum’ runs until 11 May.

REFERENDUM Q&A

When will the referendum be held?

The Scottish government wants a referendum in autumn 2014. The UK government’s preference is for an earlier poll.

What will the referendum question be?

The question proposed by the Scottish government is: “Do you agree that Scotland should be an independent country?”

Is the question fair?

The Scottish government says the question has been designed to comply with the Electoral Commission’s guidelines. However, opponents have demanded the Electoral Commission be given a statutory responsibility to make an independent judgement on the fairness and intelligibility of the question.

Won’t the question be independently evaluated then?

In its consultation paper the Scottish government says it will seek advice on the question and other aspects of the referendum from electoral professionals, including the Electoral Commission. Channel 4 News can reveal the electoral commission believes it “would not be acceptable” for the Scottish government to test the referendum question without independent evaluation.

Who will regulate the referendum?

The Scottish government has asked the UK electoral commission to regulate the referendum after scrapping its initial plans to set up a new Scottish body for this purpose. The watchdog’s proposed responsibilities have been set out in its draft referendum bill. However, documents seen by Channel 4 News reveal the electoral commission does not believe the proposals give it the powers to have proper oversight of the poll.

Will the referendum be legal?

The UK government claims any referendum held without Westminster’s backing would not be legally binding. The Scottish government contests this but would prefer to work with the UK government to gain new powers in order to hold a legally watertight poll.

Who can vote in the referendum?

Eligibility to vote will be the same as for Scottish parliament and local government elections, however the Scottish government proposes extending the right to vote to 16 and 17 year olds.

Will the referendum be held on a Saturday?

That’s one of the proposals set out by the Scottish government in its consultation. However, an internal Electoral Commission document reveals it “would not favour” a Saturday vote because of the “considerable logistical challenges that would need to be overcome”.