Letter from Boundaries Scotland to the Convener - 2 November 2021
General
There is no clarity as to the criteria against which the Committee assessed the proposals of Boundaries Scotland. As there is no suggestion that the proposals failed to comply with the legislative requirements, or that the Commission failed in its duties, it remains unclear how the Committee reached its conclusion to recommend rejection of the proposals for Highland council area and Argyll and Bute council area.
There is no reason given for the recommendation to reject the proposals in Highland and Argyll and Bute other than the absence of council satisfaction. This implies that acceptance by the council is necessary for the adoption of our recommendations by the Scottish Parliament. This requirement is not provided for in legislation and poses a fundamental challenge to the conduct of future reviews and the role and purpose of the Commission.
The Commission consulted councils for over two months and the public for 12 weeks. The Committee decided to issue an online questionnaire at very little notice, the purpose, relevance and objectivity of which is not clear. This survey appears to have been given equal or greater weight than the Commission’s own more extensive consultation work, which received favourable comments from five of the six councils involved in the reviews.
It would have been more in keeping with the fundamental nature of the boundary review process, and a fairer reflection of the Commission’s independent role, to invite the Commission both to the first evidence session to present its proposals and to a subsequent session to answer any points that arose in subsequent sessions. The opportunity to make an opening statement at the evidence sessions which was provided to other witnesses, would also have been appreciated.
Para 19-25 Island Communities Impact Assessment
25. The Committee invites the Scottish Government and Boundaries Scotland to provide clarification on what advice was issued to Boundaries Scotland on the need to undertake an island impact assessment.
The duty set out in Section 8 of the Islands (Scotland) Act 2018 was commenced on 23 December 2020 at the same time that Scottish Government published its guidance supporting conduct of an ICIA. At that point the Commission had finalised its proposals for Orkney, Shetland and Na H-Eileanan an Iar council areas and was mid-way through its public consultation for proposals in Argyll and Bute Highland and North Ayrshire. The Secretary to Boundaries Scotland contacted officials in Scottish Government for advice including the applicability of an ICIA given the stage the reviews had reached. The Commission drew on that advice, its own legal advice and the Scottish Government guidance, in considering the issues covered by an ICIA and producing the document that was published online on the Commission’s website: https://boundaries.scot/sites/default/files/Islands_Impact_Assessment.pdf
Paras 27 -33 Engagement with local authorities
With Highland Council, pre-consultation discussions took place in Inverness on 8 October 2019, attended by two Commissioners and the Commission Secretary as well as the Chief Executive, Leader, councillors and officers from Highland Council. When Council officers replied to the Commission’s follow-up letter of 30 October they said:
“The Chief Executive has asked me to let you know that both elected members and officers found the meeting very constructive and they look forward to working effectively with you on this review.”
Despite this, the Council refused to engage with the Commission and declined to reply to a statutory consultation. The Commission’s internal note of the 8 October meeting in Inverness records:
“They [the Council] welcomed the new approval arrangements set out in the Scottish Elections (Reform) Bill…..and referred to political lobbying as their next step in future if they didn’t see our recommendations as delivering what they wanted.”
It is clear to the Commission that a political decision was taken at an early stage to pursue a lobbying approach rather than to engage. The success of that approach will have been noted by other councils who will be subject to future reviews.
Argyll and Bute Council offered no criticism of Commission engagement that we are aware of. Indeed the Official Report of the Committee’s evidence-taking on 14 September records:
Douglas Hendry: “In Argyll and Bute, the commission’s engagement with the council was entirely positive. It began with informal discussions with officers and rolled out to formal engagement with members. It also took into account the wider public consultation exercises that ran over a period of time. I believe that the council’s position is that the commission made every effort to engage in a positive manner.”
In that context, it is unclear what point the Committee’s report is making at paragraph 32 but clearly the Commission will continue to do all it can to maximise effective engagement, as it has always done.
Paras 34-35 Digital Engagement
As with many other organisations, the Commission, against a background of the Covid pandemic, did all it could to maximise engagement using digital means. The Commission is not aware of any request for a meeting, digital or otherwise, that was declined. Decisions over appropriate methods of consultation in future will be considered as they arise and will aim to ensure the Commission continues to be informed by a wide range of views and that effective participation is facilitated.
Criteria Used by Boundaries Scotland
Parity
Paras 38-45 It seems questionable whether the Committee should be deliberating about parity as part of its role in scrutinising reviews carried out under current legislation in which parity is paramount.
Para 43 The comments setting out the Electoral Reform Society’s view on parity are taken out of context. When the ERS referred to parity as an oudated criteria it was as part of a call to recognise communities as units of decision making. The ERS response to the Scottish Government consultation on electoral reform in 2018 stated: “We think many more smaller wards with more members probably within the context of a lower layer of local government closer to actual communities should be the goal.” In other words they were not seeking to underplay parity within the existing system, rather to revise the system altogether.
Para 43 Against the statutory requirement to prioritise parity, the view of an individual officer in a single council carries little weight.
Para 44 This paragraph acknowledges the willingness of the Commission to deviate from parity where circumstances require but also notes the constraints of the Local Government Scotland Act 1973. There is no specific mention of anywhere the Committee thinks the Commission failed to apply appropriate flexibility nor where it was applied incorrectly.
Population sparsity
Para 48 The Committee report sets out that it sympathises with the view that “a large ward can impede the work of a councillor”. While it is true that a large geographic ward may present travel challenges, extensive research undertaken by Richard Kerley and Neil McGarvey in 2017 into “Councillors’ Role and Workload” noted “travelling, relative to other councillor activity, is reported as a relatively small component of total councillor workload – ward and internal council governance matters dominate”.
Location of the electorate
Para 52 of the report sets out that “The Committee notes the views on this issue and encourages all parties to keep in mind the potential for depopulation when considering any recommendations.”
It is not clear what is meant by “keep in mind” here. However, depopulation is a factor to the extent that the Commission is required to take account of the ratio of councillors to electors over a 5-year period. Forecasts for each ward are based on NRS population estimates and council provided data on new builds and demolitions.
Para 53 Identifiable boundaries
It is unclear here what the Committee’s concern is. The centre-line of Loch Ness is used by Highland Council for its school catchment areas and as a boundary between community council areas; it does not therefore seem inappropriate to use it as a ward boundary.
Paras 57-58 Conclusion
The Committee believes “there is still work to be done in finding a solution acceptable to both Boundaries Scotland and Highland and Argyll and Bute Council”. With regard to the proposals for “Arran and the Western Isles” it balances the views from its questionnaire with those from the councils and “accepted the satisfaction of the local authorities as a basis for approving the instruments.”
These paragraphs make it clear that proposals must be acceptable to the satisfaction of local authorities as the basis for Committee approval. This puts the Commission in an untenable position. We are independent of the Scottish Government, political parties, the public and of local authorities. While it is always hoped that solutions will be found that align with local views, ultimately the Commission’s responsibility is to propose electoral arrangements that comply with the legislation and promote fairness of electoral representation. In doing so we take account of all responses to our consultation, which are wide ranging and often contradictory, and it is entirely possible that the judgements we reach in discharging those responsibilities may not fully accord with the views of a particular council.