Why was the Electoral Commission report so uncritical of the conduct of the Referendum?

In December the Electoral Commission gave the conduct of the Scottish Independence Referendum a glowing endorsement. In the foreword to their review John McCormick, Electoral Commissioner for Scotland, states ” I am pleased to report that the referendum was well run”.

In a post last week I described how the concerns of many voters about the sampling of postal ballots implied by Davidson are almost relegated to a footnote in the Electoral Commission report on the referendum. Since then I have been pondering how McCormick can reconcile a definitive conclusion that the referendum was well run with an on-going police investigation into Davidson’s claim that: “We’ve had people at every sample opening around the country over the last few weeks; we’ve been incredibly encouraged by the results from that.”

The report describes (6.93, p141) the allegations as: ” postal voting agents had “sampled” votes at postal vote opening sessions around the country in the days before polling day. The suggestion was that the agents, who were nominated by the registered campaign groups and permitted to attend the sessions to ensure the process was conducted appropriately, had been able to see the outcome for which votes had been cast”“Had been able to..” is a tantalising switch into the subjunctive mood, but this was not “the suggestion”. The “suggestion” implied by Davidson’s remarks was that there was a coordinated conspiracy to break the Scottish Independence Referendum Act by asking postal vote agents to count the votes they saw, record the counts and return the results to the campaign headquarters for analysis; and this was the basis of my complaint to Police Scotland. Seeing the votes is not itself an offence, but trying to see them is an offence, counting the ones you see is an offence, and passing on that information to anyone else is an offence. The police investigation has found that the sampling of postal votes observed at postal vote openings  and the communication of those statistics were both taking place, but that those involved claim they were unaware that either practice was illegal. It is understandable that the Electoral Commission does not want to touch on who is being investigated, but it seems reasonable that their report accurately reflect the allegations that are being investigated.

It is clear from the investigation of these allegations and from earlier cases elsewhere in the UK that the current procedures for opening postal votes are unable to prevent postal vote agents being able to see how some postal votes have been cast between them being removed from the envelope and placed face down. It is also apparent, if we accept at face-value the claim that agents were unaware that these practices are illegal, that the notification of the secrecy requirements by providing postal vote agents with a copy of the relevant section of the legislation is inadequate. There is also an implication that some staff supervising the opening of postal votes were not aware that they should report any suspicion that any postal vote agent was counting to the police, which suggests that there were failures in the training of staff. These operational failures are not peculiar to the referendum; the Bristol East case in 2010 demonstrates that the procedures in General Elections are also susceptible. It is therefore surprising that the risk of secrecy being compromised at the opening of postal votes was not identified as a risk in the risk register template supplied to Counting Officers.

It is explicit in the legislation that the the Chief Counting Officer was “responsible for ensuring the proper and effective conduct of the referendum”, but the development of the guidelines for the conduct of the referendum was undertaken by the Electoral Management Board. The Electoral Management Board was advised by Andy O’Neill of the Electoral Commission, who attended all but two of the EMB meetings in 2013/14 and therefore was closely engaged in the planning of the Referendum. The Scottish Independence Referendum Act requires the Electoral Commission to report to the Scottish Parliament on the conduct of the referendum. In the immediate aftermath of the referendum voters with concerns about the process were encouraged by the Chief Counting Officer and the Electoral Commission to submit their complaints into the process developing this report. I have been told by the Electoral Commission that Andy O’Neill, adviser to the EMB, was responsible for producing the report. If the report had just been an account of the referendum, then this would not have been an issue; but once it became part of the process to review complaints and evaluated whether the referendum was or was not “well run”, then there was a clear conflict of interest. In contemporary jargon, he was being asked to mark his own homework. This conflict of interest might also explain the omission from the report of the criticisms made by SAA about the procedures for appointing emergency proxies that I discussed in an earlier post.

The procedures to prevent agents sampling postal votes are currently wholly inadequate. The Electoral Commission response to the 2010 case was to treat it as an isolated incident rather than identifying a systemic weakness, and this complacency has continued in their downplaying of the alleged offences in the Referendum. With four months to go to the General Election, the Electoral Commission should be urgently taking steps to stamp this practice out.

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