Democracy is the loser in debacle over lost votes
Trust in Scotland's parliamentary elections is at an all-time low. As the declarations rolled in on election night one thing was clear. An unprecedented number of citizens had been disenfranchised, with a massive 142,000 votes discounted. To put this in context, the number of spoiled ballots on the constituency vote increased by 600% from the 2003 election.
With Scottish democracy in disrepute, we need to know what went wrong, and more importantly, what can be done to reclaim our proud democratic reputation.
Over the past few weeks Govan Law Centre has been investigating these issues on behalf of concerned Glasgow voters with the assistance of counsel. An interesting story has emerged: confusing ballots, poor advice by officials, returning officers unable to cope, impossible legal redress and an official inquiry with no power. Some voters had legal grounds to challenge the Glasgow election. We are aware of voters who were told to place two crosses on the regional ballot by polling staff. Such misdirections could justify a challenge in principle, and it is unlikely these mistakes were specific to Glasgow.
Other voters were given incomplete advice from officials along the lines of "just place two crosses on the paper". As the paper contained two separate ballots this instruction was incomplete, although not sufficiently negligent to give cause for legal complaint. And then there were those who applied for a postal ballot and didn't receive one.
Most confusion appears to have come from the layout of the ballot. The removal of instructional arrows on the Glasgow and Lothian ballots was not against election rules. Interestingly, there was no legal requirement for these arrows. From speaking to those present at election counts it is evident many voters placed two crosses on the regional ballot and left the constituency ballot blank. This would spoil both votes, although people had correctly understood they had two votes.
How could this confusion arise? Without doubt there were two factors which had a devastating impact when combined.
The decision to print both regional and constituency ballots on the same sheet created a catalyst for confusion. That confusion was ignited by allowing political parties to substitute names on the regional list with a non-party description. For example, "Alex Salmond for First Minister" was the first thing voters saw. Many voters placed a cross next to Mr Salmond's name and a cross next to one of the smaller parties. This mistake may have had an adverse impact on those parties standing for the region only.
Then there were unprecedented mistakes at a constituency level. In Cunningham North the SNP beat Labour by 48 votes. There were 1012 spoiled ballot papers, but when Allan Wilson asked for a full recount the returning officer refused on the grounds there was no provision for this. The returning officer was only prepared to undertake a review of 4400 of the 31,012 votes cast. Yet, the election rules entitle a candidate to request a full recount. There can be no excuse for denying a full recount in such circumstances.
In the past this would have been done manually without much fuss. Thousands of voters across Scotland cast their votes in good faith but were denied a democratic voice. Any candidate or voter can challenge a parliamentary election by presenting a petition to the Court of Session within 21 days under the Representation of the People Act. However, that right is illusory for citizens.
It took us two weeks to persuade the Scottish Legal Aid Board to grant an increase in advice and assistance so an advocate could examine the issues surrounding the Glasgow regional election. Then there was the obstacle of no civil legal aid being available for election petitions.
We could not challenge this prohibition under human rights law as European jurisprudence treats voting as a political and not a civil right. A contested trial in the election court could cost between £50,000 and £100,000.
In reality, the only people who can challenge a parliamentary election are the very rich. What does this say for checks and balances? All hopes must now be with next month's Electoral Commission inquiry headed by Ron Gould. But the commission will not have access to spoiled ballot papers under election law. All papers are held by the sheriff court and can only be accessed for the purpose of criminal proceedings or an election petition - and the time period for that expired last week.
The inquiry must have access to spoiled ballot papers. The Scotland Office can permit access but this would require a statutory instrument at Westminster. Nothing less than a full and robust inquiry will do if we are to restore confidence in Scotland's democratic system.
Mike Dailly is Principal Solicitor at Govan Law Centre.
Ruth Wishart is away.
12:01am Wednesday 30th May 2007