Scottish Parliament (Elections etc.) Order 2010

My Lords, I again thank my noble friend for his exposition of not only the order, but also the Government’s reaction to the report of the Joint Committee on Statutory Instruments on the defective drafting of the order. It has to be said that this is a long, complex and not consumer-friendly order. It would be my recommendation that a proper guide to practice set out by this consolidating order should be made available to help the many people involved in elections in Scotland to find their way around the rules. Much of the order is drafted by reference to other Acts and other rules, sometimes with cross-references within the order. It cannot be an easy matter for those who have responsibility at a local level—not perhaps legal responsibility, but the responsibility of organising a campaign appropriately—to master the complexities of such things as who may obtain information about the forthcoming election, what are the limitations on the information that is required to be revealed and to whom. I think that a handbook, which needs not have the force of law but which is consistent with the order, would be a practical and helpful step to take. Within this order, there are a number of useful changes. It is not purely a consolidating order. Although it is helpful to have the rules all contained in one order, it is also sensible to have made some of these changes. In particular, I believe that the extension of the timetables for holding elections and the different elements of the election make sense because it means that there will be less pressure of time on those who have responsibility for orderly conduct of the election. In the light of the experience in 2007, it makes sense to revert to the manual count. We cannot regard what happened then with anything other than dismay. The order is also helpful in setting out the new limitations on pre-campaign expenditure. I assume it is the Government’s intention that any changes which may be required will take account of the current legislation, which is considering the possibility of a referendum being conducted on the same day, and will be included in the Act. But as the Government have indicated that there will need to be a new draft of this order to reflect their acceptance of the defective drafting, I hope that there will be an opportunity to consider the matter briefly in both Houses and consolidate the change at an appropriate time. I do not find the drafting of the order entirely clear, but I have no intention of going through in detail its 200 pages since this is not a Committee stage and we have a limited time for debate. Let me take one or two examples at random. I do not expect the Minister necessarily to respond to them, but they touch on an important point made by the noble Lord, Lord Browne of Ladyton, about the system that has produced this order and the need to consider the adequacy of the arrangements for drafting. Article 5(3) states that: "““An election shall not be questioned by reason of—""(a) any non-compliance with the provisions of this article; or""(b) any informality relating to polling districts or polling places””. " These provisions are remarkably opaque. They are not made clear by any definition of the article, nor is it even made clear who would determine whether there has been non-compliance with the provisions of the particular article, or what is meant by ““informality”” relating to polling districts or polling places. Both those provisions seem confused and confusing. There are other provisions which again I find far from clear or instructive to those who will have to administer the rules effectively. Article 15 is headed: "““Officers of councils to be placed at disposal of returning officers””." Paragraph (1) states: "““Every local authority in Scotland shall place at the disposal of the CRO””—" the constituency returning officer— "““for a constituency wholly or partly situated in their area … the services of officers employed by the authority””." It does not make it clear what criteria will be used to judge the number of people to be made available to returning officers. If in a time of financial stringency efforts are made by local authorities to reduce the cost of conducting elections by limiting the number of officers made available, that could lead to further confusion, which would be highly undesirable and bring the conduct of our democratic elections further into disrepute. There ought to be an adjudicating procedure to determine the requirement—or, if not, at least advice with some degree of moral compulsion behind it. I could go through this order almost article by article and take exception to the manner with which it has been produced. The intention, when producing a consolidating instrument, is to simplify the process for those who have to administer it, and I do not find that this objective has been achieved. I hope there can be some additional reflection on the inadequacy of the Explanatory Memorandum, which is presented to Parliament to assist us in working through the document. It is likewise filled with errors of a typographical nature which reflect the lack of seriousness in its construction. Perhaps because it is a précis, reducing to a mere six pages a 200-page document, it is guilty of constantly making cross-references to other statutes. It is impossible to understand the meaning of the Explanatory Memorandum without actually having the statutes present on the desk as you go through it. I think it is losing sight of the purpose of Explanatory Memoranda if they are drafted in this incomprehensible manner and are not sufficient in themselves to guide the readers who are seeking to spot what is right, what is valued and what might need some alteration. It is bizarre that there should be typographical errors in the preparation of the order itself, which have so confused the reading of Schedule 2 by mixing up all the parts. Of course I do not hold any Minister responsible but I think the question that was asked about systemic coherence by the noble Lord, Lord Browne of Ladyton, could be extended to the preparation of this order by lawyers and the lack of consultation which he has referred to. I believe that some people were consulted, but not consulting the Law Society seems an omission which could in future be rectified to advantage—in my experience the Law Society has been extremely careful in giving its advice. I recognise that the Government have had to proceed against quite a tight timetable to produce this order in time to enable it to be the ruling guide to the elections to be held in May, but it is certainly not an exemplification of how to proceed by way of statutory instruments. In conclusion, I welcome the decision to transfer the conduct of Scottish parliamentary elections, which my noble friend referred to, in the Scotland Bill in conjunction and in accordance with the recommendations of the Calman commission on further devolution. It seems to me that, in these limited debates on statutory instruments, we can give only inadequate scrutiny of something so profoundly important as the conduct of parliamentary or local elections in Scotland. It is a deficiency of our scrutiny which I think will be rectified by what is proposed.