Commentary on Provisions Part 7: Election pilots and democratic engagement 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.