Parliamentary Voting System and Constituencies Bill
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Lord Davies of Stamford
I hope that, by whatever means, the Electoral Commission will address the issue raised by these two incidents, which hardly look as if they are purely coincidence. If noble Lords cannot get an answer from the Electoral Commission, what are the chances of an ordinary member of the public doing so? I suspect that that is a matter of concern not just to me but to the whole House.
The Chancellor of the Duchy of Lancaster (Lord Strathclyde)
My Lords, it may be helpful if I deal with this issue because I understand that the Electoral Commission has just moved offices. That is why the old phone number does not work. The new phone numbers should be available in the normal way and we can make them available. If anybody wants them, they can call my office and we can get them to them. I am assured that the Electoral Commission takes great care and notice of what happens here.
Lord Strathclyde
My Lords, I think there is a greater likelihood of the Electoral Commission reading Hansard than members of the general public. Maybe I am wrong about that.
However, I can also say that the Electoral Commission’s website is really excellent and a great deal of the information that we have been discussing this afternoon is on it. I will give a fuller response later on but I think the noble Lord, Lord Low, is trying to get in.
Lord Bach
My Lords, we have quite properly had a very full debate on this important group of amendments. The Committee should be grateful to all those who have spoken. Our view from the Front Bench is generally supportive of the amendments in the group. I do not know whether Messrs Hegel, Heidegger and Marx would be flattered by the reference to them in the context of this Bill in the British House of Lords, but I am certain that they would be astonished to have been referred to at all.
These are important amendments. The noble Lord the Leader of the House will undoubtedly be familiar with the draft leaflet that the Electoral Commission has put out. Does he have any up-to-date information on whether the Electoral Commission feels that this is a satisfactory document? How much does it intend to change it? Maybe this is the nature of the beast, but how does the page—it is just one page—on the first past-the-post system compare to the pages on the alternative vote system? There are four pages on how this branch of the alternative vote system works. Is that deemed to be satisfactory by the Electoral Commission? I think that it only sets up the difficulties that many noble Lords from around the Committee have mentioned in their contributions. What I am really asking the noble Lord the Leader of the House to tell us is, what is the proposal as far as the Electoral Commission is concerned in terms of a final leaflet?
The Electoral Commission published on 30 September last year, Report of Our Views on the Proposed Referendum Question, to which I believe the Government responded in due course. It is worth pointing out a couple of the findings. On page 1, it states:
“Our research found the main difficulty people had in understanding the question was that they did not recognise or understand the voting systems it talks about – ‘First Past the Post’ and ‘Alternative Vote’. Accessibility and plain language specialists also commented that these were not terms that most people would be familiar with”.
Then on page 2, under “Summary of our findings”, it states:
“There were also some particular words and phrases used in the question that some people did not understand or struggled with: not everybody understood the term ‘First Past the Post’, or knew that it is the name of the system used now to elect MPs to the UK Parliament – even people who had voted before in this type of election … The term ‘Alternative Vote’ caused particular problems and was not understood, or was misunderstood, by nearly everybody taking part in our research”.
That may not come as a huge surprise to Members of the Committee, but it is a warning note. Indeed, the Committee’s discussions about the various types of alternative vote—which are the most satisfactory and which are not—pale in comparison to the fact that there is, at the moment, extremely limited understanding of what this type of alternative vote procedure actually means. Whatever view we take about the referendum taking place, there will not be very long to remedy that. So that is a warning and it is why I think that the amendments of the noble Lord, Lord Lipsey, are so important.
The Electoral Commission is, of course, an independent body created by Act of Parliament and has very strict rules, rightly, about the political activities of its staff. Nevertheless, there is no disguising the political significance and sensitivity of the decision on the electoral system which will be taken in this referendum and the role that the commission will play in it. As the Bill has demonstrated all too well, political interests are, of course, heavily engaged by this referendum. There is therefore a danger, as has been said on many sides, that in the context of this highly politicised environment, the information which the commission is due to circulate and which will impact significantly on the outcome of this referendum could become the subject of severe dispute. I want to remind the Committee, for a minute or two, of what can be described as an Irish cautionary tale.
I remind the House of what happened in Ireland during the referendum not that long ago on the Lisbon treaty in 2008. In advance of that referendum, a referendum commission was appointed under Irish law to promote awareness and understanding of the Lisbon treaty so as to inform the public about the issues at stake in the referendum. Indeed, apparently it is the practice in Ireland—some noble Lords will know this—that a commission is established for every referendum to ensure that the subject matter to be voted on is explained to the electorate.
The commission is also required to encourage the electorate to vote, which is another task that our own Electoral Commission has been asked to discharge in the forthcoming referendum. Like the subject matter involved in our proposed referendum, the Lisbon treaty was felt to raise issues of such complexity and technicality that it was quickly recognised that the information provided to the public by the independent commission could have a highly significant impact on the electorate’s decision. The subject matter that was distributed by the commission was therefore subject to intense scrutiny by the media and became the object of public argument between the two campaigns. This eventually spilt over into a wider spat about the commission’s independence, with claims and counterclaims being made about the connections between commission staff and individuals in the different campaigns, as well as allegations about a conflict of interest involving companies hired by the commission to help with legal work and communications advice which also worked for the Government. Many Members of the Committee will be reminded of that argument by what I have just said.
Of course, I am not suggesting that we would see the same problems repeated here, but we are saying that because of what is undoubtedly at the moment a low level of public knowledge about electoral systems, that inevitably means that the information provided by the Electoral Commission could have a major bearing on the outcome of the referendum, which in turn makes it highly likely that this information will be the focus of considerable attention, to put it mildly. Perhaps I have just set out the problem in other words, but the ways in which my noble friend Lord Lipsey and others who have spoken to amendments in this group have approached this problem need careful consideration by the Government in the little time that remains. We look forward to hearing what the noble Lord the Leader of the House has to say.
Lord Strathclyde
My Lords, it is good to have an opportunity to join in this debate. I am very grateful to the movers of the amendments. We have certainly started off with a most interesting debate on this group of amendments. The debate became slightly whimsical, but that is not the first time that that has happened in this Committee. I was glad to hear from my old friend the noble Lord, Lord Graham of Edmonton, for whom the House knows I have a great deal of affection. He was the last great Chief Whip in opposition who achieved so much with so little when the Labour Party was a relatively small part of this House. It is now the largest group in the House of Lords. The noble Lord said that there should be time for reflection—I assure him that we have done nothing but reflect for the past three months or so—and that we should consider some of these issues on Report, and we will, of course, do so.
It will come as no surprise to anybody who has been listening to these debates that the Government very much hope that the referendum will take place on 5 May and have planned for that. I have said that many times and the Government announced their intentions in July. I know that some noble Lords opposite would rather that it were not held on that date and that the Labour Party manifesto stated that it wanted a referendum on AV in October, as it considered that that was a better date, but that is not the view that the coalition Government have taken. In order to get the Bill back to another place so that the Electoral Commission can complete its work in time for a referendum on 5 May, the Bill will have to go back to another place on Monday 14 February. I do not suppose that that is a surprise to noble Lords opposite either as they have known about that date for a very long time.
I was very grateful to the noble Lord, Lord Pannick, who said that we were making heavy weather of the debate—he was right about that—and tried to knock a few heads together. I am also grateful to my noble friend Lord Newton for what he said about some of the common-sense aspects that came out of these amendments. It has been a full debate and I shall try to give it a full answer.
Lord Foulkes of Cumnock
Can the Minister confirm whether the booklets will available in languages other than English?
Lord Strathclyde
I do not know, but I know that in Wales it will be available in Welsh and English.
Lord Maxton
Can this be produced as an app for the iPhone and the iPad? That is where many youngsters get their information. A single app on their phone which allows them to read it would be very useful.
Lord Strathclyde
My Lords, that is an immensely good suggestion and of course that will be a decision for the Electoral Commission.
It is not clear from the current legislative framework under the Political Parties, Elections and Referendums Act 2000—specifically Section 13—whether the commission has the power to publish information about the voting systems for public awareness purposes in this particular referendum. Therefore the Government considered it best to make the position absolutely clear and accordingly, we tabled an amendment to insert paragraph 9(2) into Schedule 1 in Committee in the other place, which was passed and is now reflected in the Bill.
We do not see that it is necessary, or desirable, to mandate that the commission must issue information, as amendments tabled by the noble Lords, Lord Rooker and Lord Low, aim to do. Rather, it is the commission’s prerogative. The commission has indicated that it would like this power and that it clearly intends to exercise it but we do not think that the Bill should go further than that and oblige it to do so. Moreover, it is simply unnecessary to legally obligate the commission in this respect. The commission has already publicly indicated its intention to produce this information, and has published the draft text that will form the basis of public information leaflets on its website. I am glad that some noble Lords have seen it. It is important that those who take a real interest in these matters should look at it and send their comments to the Electoral Commission regarding this information before the leaflets are published.
The same point, concerning the appropriateness of imposing a legal mandate on the commission in this area, also applies to the amendments tabled by the noble Lord, Lord Lipsey. These would obligate the commission to provide a leaflet summarising the meaning of the question, together with the main arguments for and against first past the post and alternative vote. The amendments also specify that the leaflet must be impartial and unbiased, and distributed to every household in the UK, so far as possible.
The commission is clear that the leaflets will contain factual information; that this information will be impartial and unbiased—it would go against the commission's regulations to promote one particular outcome or be anything other than unbiased—and that it will go to every household in the UK. For this reason we do not think it appropriate that the information includes arguments for and against each voting system. The information will be factual, whereas the pros and cons are subjective. These arguments will naturally be for the campaigns. It is hard to see how the commission could be expected reasonably to summarise all of the arguments for and against in a way that is commonly accepted to be impartial and unbiased. This is an inherently partial subject, and the more the commission is drawn in to trying to describe the pros and cons, the more open it would become to allegations of partiality. It is important that the commission is neutral. Therefore, the arguments for and against should be left to the campaigns.
Lord Davies of Stamford
The Leader of the House is making exactly the point that I made, namely that it would be quite wrong and inappropriate for the commission to try to summarise the arguments for and against. Will he deal with the proposal that I made, with some support from my colleagues, that if there are two coherent campaigns, one on each side, the two organisations concerned should be invited to produce a leaflet that would be sent free to every household with the information pack from the Electoral Commission, as happened in 1975?
Lord Strathclyde
My Lords, the noble Lord is quite right, and therefore he and I are in agreement on this. As far as concerns the two campaigns, their material will not be part of the same leaflet pack. The campaigns, too, will get a free post, so that every voter will be left in no doubt about the information. Of course, we expect the media to play a full part in the campaign in the run-up to the referendum.
Lord Campbell-Savours
What about factual inaccuracies, for example the discussion about 50 per cent? Ministers at the Dispatch Box—including the noble Lord himself—have had to correct the record on the 50 per cent question. Does he think that the Electoral Commission might be in a position, in a neutral way, to set the record straight that it is not a requirement for a candidate to secure more than 50 per cent of the votes to be elected under AV?
Lord Strathclyde
My Lords, that is why I hope that the noble Lord will look at the website. If he does, he will find that the Electoral Commission has already made that point in its draft. He will be immensely reassured, as will the noble Lord, Lord Rooker.
I will respond to a couple of other issues raised by the amendments in this group. We very much agree with the intention of the noble Lord to ensure that leaflets are written in plain English. The noble Lord, Lord Rooker, my noble friend Lord Newton and others can be assured that the Electoral Commission is seeking the advice of language experts and working with the Plain English Campaign to produce its material. Nothing in the Bill prevents this, and the commission is doing it anyway, so I hope that the noble Lord will agree that that part of the amendment is unnecessary.
I am sorry to have dealt with these matters quite fully, but, as the noble Lord, Lord Bach, said, they are important issues. I hope that I have put the Committee's mind at rest that these matters have been thought about.
Lord Wills
Before the noble Lord concludes his remarks, perhaps I might ask him to address the issue that I asked my noble friend Lord Grocott to address, namely the role that public service broadcasting organisations in particular should play in the debate. It is perfectly possible that they will think that this is an arcane and abstruse issue that deserves 10 minutes on “Newsnight”, and that will be that. Does he think that that would be an acceptable discharge of their public service obligations, or would he expect them to play a fuller role in fully, fairly and impartially examining all the issues on both sides of the debate?
Lord Strathclyde
My Lords, I am convinced that the broadcasters will see it as part of their remit to involve themselves in these debates. It is up to them to decide how they do so and is not at the direction of the Government, however desirable those of us in government might think that that would be.
Lord Rooker
My Lords, like the noble Lord, Lord Pannick, I am surprised that the debate has lasted so long. On the other hand, it has been quite interesting. There has been talk of contentious items. The first thing that I contend is that the largest group in this House is the coalition, not the Opposition. We could have a debate about that: it is the kind of thing that we might put on the leaflets. As someone said, it is symptomatic and sad that the only debates on the Bill in which these issues have been raised have been in this unelected House of Lords. They were not debated in the other place and certainly will not be, so we need not apologise for debating them here.
There is another surprising thing in this debate. We have agreed to finish Committee stage tomorrow, and when there is such an arrangement, it is normal for those who have restrained themselves from participating in the debate to pile into the debate. That is what used to happen in the other place. However, we have had only one contribution from the Liberal Democrats. They know that they can speak on this without affecting the outcome simply because we are going to finish tomorrow anyway, yet they still refuse to join in the debate. However, that is their problem, not mine.
It has been an interesting debate, and I wish to raise a couple of further points. The legislation talks about information to “persons”, not households. As far as I know, there are 44 million electors in 27 million households. The legislation says “persons”. People are going to vote, not households. If we want to talk about the bias, it might be considered bias in the proposed leaflet—I have the draft in my hand—for the status quo to apply in terms of which system will be dealt with first. The issue will be: which system will be described first in the leaflet? There could be a question of bias. I have no view about which way round they should be, but if I was really fanatical, I could nit-pick and consult lawyers about which one is going to be described first—leaving aside the fact that there are four pages to one system and one page to the other, which is another issue.
Furthermore, no one has mentioned the costs involved. I saw press reports at the weekend of the yes campaign being backed by about £6 million and the no campaign somewhat under £1 million. Obviously there is money to be spent on this. It is not impossible to do this. I have so far refrained from mentioning, as I did before, the fact that in New Zealand there was never any complaint, to the best of my knowledge, about the literature put out by its Electoral Commission for its two referendums when they changed the voting system. So it is perfectly possible to explain.
I am pleased about something that is contained in the Electoral Commission draft, which I have only just seen. It will not wash in terms of explanation, but it will stop the Deputy Prime Minister telling fibs any more. The draft says:
“Because voters don’t have to rank all of the candidates, an election can be won under the ‘alternative vote’ system with less than half the total votes cast”.
Let us have an end to that. I know that the Leader said that; he is not going to point out the errors of the Deputy Prime Minister, who started peddling this view. I could peddle the issue about how it ends tactical voting. It does not—it moves tactical voting to the second vote.
We have had an interesting debate. My noble friend talked about leaflets. It will be booklets, not leaflets. I do not see why the Royal Mail cannot do it. It can deliver to every household quite quickly. The difficulty is in the timing. Nothing can be printed until after Royal Assent. One assumes that something will be ready to go, if the Plain English Campaign has looked at it. However, it is going to go through letter boxes in the UK at exactly the same time as other election literature. Will it get the justice that it deserves? Clearly, we are embarking on a big project. As I have said, I have no view about the referendum on 5 May. I only offered a lifeboat if a lifeboat was needed. I do not campaign one way or the other. I simply think that, as I said last night, time is running short to get the message across in a way that will result in a meaningful vote.
Some practical problems may come up in terms of the mechanism that will be involved. One assumes that contracts have been looked at. You cannot just go to Royal Mail and say, “By the way, you know there are local elections in which there is no free post, but there are poll cards; and, by the way, we are having a referendum. Can you knock an extra one out for every household in the country?” Royal Mail will say, “No one has asked us about that. We have not got the capacity for that. We need more warning”. Has anybody done that? I presume we can ask that when we debate further amendments. However, in view of the need to make progress, I beg leave to withdraw the amendment.
Lord Soley
I referred to this matter in my earlier comments and I am encouraged to make a further comment partly by the speech made by my noble friend Lord Davies of Stamford but also by that made by the noble Lord, Lord Pannick. The problem here is paragraph 9(2) of Schedule 1. Paragraph 9(1) is very clear. It does not put the Electoral Commission in the firing line at all. If the noble and learned Lord, Lord Wallace, who I assume will answer this debate, heard anything of the previous debate he will have heard anxiety expressed in all speeches about the dangers of putting the Electoral Commission in a position where it takes the blame for not getting a balanced view of the two systems. As I have said on a number of occasions, it is very difficult to write a pamphlet describing the two systems without, in some way, being biased. My noble friend Lord Rooker has already touched on this.
There seem to be two ways of dealing with this problem. One is the way put forward by my noble friend on the Front Bench, which is to allow a political committee, the Speaker’s Committee, to be the lightning conductor. That committee would oversee the work that was done and would sign it off and if there were any flak from it, it would not go straight to the Electoral Commission. That is one way of dealing with it.
Perhaps I may suggest another way which came to me when I heard my noble friend Lord Davies speak—I noticed that the noble Lord, Lord Strathclyde, gave a fairly positive response to it—and that is the idea of the two campaigning groups being able to send out a leaflet, at public charge, so that it would be done rather like an election address. Looking back to paragraph 9, sub-paragraph (2) is problematic because that is where the Electoral Commission is required to make judgments about the wording used to describe the system. If we took out sub-paragraph (2)—I do not expect the Minister to respond to this straightaway but he might want to think about it—and simply left in sub-paragraph (1), then the Government could, in this Bill—I suspect that it would not need to go into the Bill—allow for the two campaigning groups to produce the leaflet as described by my noble friend Lord Davies with some sympathetic support from the noble Lord, Lord Strathclyde. That could be sent round, either with the Electoral Commission’s pamphlet or separately—I should have thought it would go with it—and in that way you take the responsibility of describing the two systems other than in a very basic sense which is required in paragraph 9(1), and put the requirement in paragraph 9(2) onto the two campaigning organisations.
I hope I am making myself clear. It is slightly complicated, but I am arguing that the two campaigns will know what they want to say for and against the two systems. If they produce their own leaflets and they are circulated with the pamphlet put out by the Electoral Commission, which they will do under paragraph 9(1), then it leaves the Electoral Commission in the rather tighter position of simply saying that there is a referendum, informing people about it, informing them how to vote, but not getting into the nitty-gritty of the pros and cons or the description of how the two systems might work. That would be left to the two campaigning organisations. That way you would take the Electoral Commission out of the firing line. The alternative way is to do as my noble friend has suggested from the Front Bench and leave the Speaker’s Committee to oversee the leaflet. It seems to me that either of those systems would act as a lightning conductor for the Electoral Commission and not put it in the firing line for what will almost certainly be seen as in some way a biased leaflet. I hope I have made myself clear. Perhaps the Minister would like to think about that.
Lord Wallace of Tankerness
I thank the noble Lord, Lord Bach, for moving the amendment. This important amendment follows on from the previous debate and I welcome the contribution of the noble Lord, Lord Soley. As the noble Lord, Lord Bach, said in introducing his amendment, it is appreciated that the Electoral Commission should take the lead role in providing useful factual information. We believe it plays an important role in providing information to the public and there is a governance framework for the Electoral Commission, under the Political Parties, Elections and Referendums Act, which we believe has operated effectively for 10 years. It is also important to recall in the context of this amendment that latterly the Electoral Commission has had the benefit of advice and involvement of representatives from the political parties: the noble Lord, Lord Kennedy of Southwark, for the Labour Party, the noble Baroness, Lady Browning, for the Conservative Party and Mr David Howarth, the former Member of Parliament for Cambridge who represents the Liberal Democrats.
The Speaker’s Committee is an important part of that framework. It produces an annual report to Parliament on the commission's performance, but the nature of the role of the Speaker's Committee is different from that proposed in the amendment. The Speaker's Committee is currently not given any say in how the commission should exercise its powers. It is there to report on the performance of the commission rather than to have a say in the exercise of its powers.
The purpose of paragraph 9(2) of Schedule 1 is to provide legal clarity so that the Electoral Commission can issue information about both the first-past-the-post and the alternative vote systems which it identifies as being necessary to help public understanding of the referendum question. I hope that that goes some way to answering the point of the noble Lord, Lord Soley, which was whether we could delete paragraph 9(2) and leave it to the respective campaigns. Although the respective campaigns will have facility under the free post to put out their argument—no doubt a positive argument for why they wish to retain first past the post or to move to the alternative vote and an argument against the other system—that is clearly not a role that would be appropriate for the Electoral Commission.
Paragraph 9(2) provides a clear legal basis for the Electoral Commission, having identified a need for factual information, to provide it. In his response to the previous debate, the noble Lord, Lord Rooker, said that it could be accused of bias because first past the post was described before the alternative vote. In fairness, if one looks at the electoral question, the question for the referendum, which is part of the Bill, first past the post is mentioned there before the alternative vote, so it is probably not unreasonable that the Electoral Commission should reflect in its information the question which Parliament is debating and which appears in the Bill, published on advice from the Electoral Commission.
Lord Anderson of Swansea
If a leaflet is to be produced by campaigning organisations, the noble and learned Lord will understand that, normally, when making an argument, you put the argument you want to make second. It is assumed that in a “on the one hand, on the other hand” argument, you put the argument that you favour second. Cannot that be got around in a leaflet by having one side of one page for and the other against?
Lord Wallace of Tankerness
The answer to that, as the noble Lord, Lord Rooker, pointed out, is that it takes a bit longer and more pages to describe the alternative vote than it does to describe the first-past-the-post system. Although that is an innovative and ingenious way to try to overcome the problem, I think that a practical issue is associated with it.
As my noble friend the Leader of the House said, the Electoral Commission has already published the proposed content of its information leaflets on its website. It is keen to have comments on the draft. If noble Lords wish to make representations about that information, they can of course send their comments to the Electoral Commission before the leaflets are published.
Lord Foulkes of Cumnock
Can the Minister help me on one issue? He knows as well as I do that before elections, party election broadcasts replace party political broadcasts. Will there be referendum broadcasts for the yes and no campaigns? Will that be part of the arrangements for the referendum?
Lord Wallace of Tankerness
Off the top of my head—I think I know the answer but I cannot be certain—I think that the answer is yes. I know that parties cannot use their election broadcasts for the referendum campaign. I think that that was decided in a case prior to the Scottish referendum in 1979. I think that there will be broadcasts, but perhaps I can confirm that in the course of my remarks.
I am mindful that all public bodies need to be held properly accountable for what they do, but we need to strike a sensible balance. It seems to me that there are dangers in introducing a role for a parliamentary committee in approving the operational work of the commission, as is envisaged under the amendment, rather than monitoring and commenting on its performance, as is the case established under the PPERA. It must also be remembered that the Speaker's Committee, however august, comprises politicians. Irrespective of how carefully we might think that the committee would use its power—I have no reason to think that it would do other than that—perception can be important in these matters. There might be concern if the Electoral Commission—which, I think, everyone agrees, has a reputation for its impartiality—had in this crucial area to have its work vetted or approved by a body comprising politicians.
Furthermore, building in an extra procedural hurdle before the commission could issue the clarifying information to help voters could be difficult if confusion about the systems was allowed to take root and hares were allowed to run which could not be corrected promptly because of the need to refer. We must also bear in mind that the commission already issues a lot of useful guidance to voters, parties, candidates and electoral administrators about the working of our system. That has worked well. I am not aware of any significant concerns about it.
I confirm that my instinctive answer was right: there will be referendum broadcasts for the designated campaigns.
It is the commission's responsibility to decide how, and whether, to provide that information. As I said, I think it is widely accepted across the Committee that the commission is well established as a neutral, independent body. I am confident that it does not need the extra provision which the amendment would impose. There is a further opportunity for noble Lords to comment on the draft. I therefore ask the noble Lord to withdraw the amendment.
Lord Bach
I thank the noble and learned Lord for his full answer and my noble friend Lord Soley for his contribution in support of my amendment. I am slightly disappointed by the noble and learned Lord’s response. As I said in opening, this is a modest proposal—and a practical one, I think. Without doubt, the Electoral Commission will come under a lot of pressure, to put it mildly, in the lead-up to and during the campaign for the referendum. No doubt, much of that criticism will be ill judged and unfair, but the Electoral Commission will have to face it.
This modest amendment is an attempt to give some cover, some protection to the Electoral Commission. The Speaker's Committee already exists. For the life of me, I cannot understand what are the dangers of extending its role to this issue. I understand that the Government do not want to adopt the amendment. I should like them to go away to think about it again because, as a practical measure to try to stop the difficulties that will undoubtedly arise in future, it seems to us to be sensible.
Of course I will withdraw the amendment today. We want to consider in more detail what the noble and learned Lord said, but I tell the Committee that we may well return to this issue at Report. I beg leave to withdraw the amendment.
Lord Bach
My Lords, in our view these are two excellent amendments, although it is rather surprising that they have been put together in the same group. What links them is their excellence, and I hope that the Minister will be encouraging to both noble Lords who tabled them. I do not fear for the health of the noble Lord, Lord Phillips, on his way home. We all know him as a brave and independent-minded Peer who has already shown, in the course of the eight or nine months of the coalition’s existence—it seems a long time already—that he can act independently. Looking at him from where I stand now, he seems to be the same man he was before he voted a few months ago against the coalition on an important amendment on a different issue, so good luck to him in his amendment. Of course, if he had been concerned, he need not be any longer because he has the protection and support of the noble and learned Lord, Lord Mackay of Clashfern, and there cannot be any better protection and support than that around the House.
The noble Lord, Lord Phillips, pointed out the ambiguity and ambivalence of paragraph 10 and the need for it to be simplified. For those on the Front Bench on this side, that is clear, and I think it is the only point I need to make about his amendment. We hope that his noble and learned friend Lord Wallace of Tankerness will take note.
My noble friend Lord Lipsey’s amendment also seems to hit the mark for us. The noble and learned Lord, Lord Mackay of Clashfern, was right to say that what happened at the end of the last general election night—thankfully in a comparatively small number of venues, although even one was one too many—was absolutely disgraceful. Indeed, if it had happened in any other country, whether it was a sophisticated democracy or a new democracy, I venture to think that it would have been reported in the British media as being proof that that country had not really grown up democratically and lacked certain vital factors in elections. We must make sure that it does not happen again, and indeed I think that that is what my noble friend is suggesting in his amendment.
The noble Lord, Lord Rennard, was quite right to say that this would only affect the referendum, but it needs to affect all elections. However, the noble Lord, Lord Rennard, is perhaps best placed of anybody in the House to use his influence to make sure that government views can be changed so that this can become general practice rather than just for the referendum.
I have nothing else to say from the Front Bench except that we hope very much that the Minister will be sympathetic to these two amendments, both of which will add to the virtue of the Bill.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, in addressing the amendment tabled by my noble friend Lord Phillips, I can assure him that he need not be concerned about proposing it.
Amendment 110ZA would impose a duty on the chief counting officer to facilitate co-operation between the officer, the Electoral Commission, the regional counting officers, counting officers and registration officers. In common with other noble Lords who have spoken in the debate, the Government agree with the intention of the amendment, which is to ensure that there is a strong relationship and good communication among those involved in running the referendum. However, we do not believe the amendment is necessary because there is nothing in the Bill which would inhibit this kind of activity from taking place.
Paragraph 10(1) of Schedule 1 states:
“The Chief Counting Officer must take whatever steps the officer thinks appropriate to encourage participation in the referendum”.
That, of course, includes precisely the kind of co-operation suggested in the amendment. Moreover, I can assure my noble friend and the Committee that this kind of co-operation is already happening in practice. The chief counting officer has established a working group, which includes regional counting officers, to co-ordinate activity ahead of the planned polls; and the commission’s plans for public awareness have been shared with this group, as well as with counting officers and electoral registration officers. We are assured that material will be developed by the Electoral Commission for use by electoral administrators to support their public awareness work and to ensure appropriate co-ordination with its own activities.
On a slightly more technical point, the amendment does not sit well with the current wording and spirit of paragraph 10 of Schedule 1, where the onus is on the chief counting officer being responsible for deciding what steps she thinks are appropriate to encourage participation. It should be noted that when undertaking this responsibility the chief counting officer can also use her power of direction under paragraph 5(5) of the schedule to require regional counting officers and counting officers to take a particular course of action to encourage participation. In contrast, the amendment would mandate the chief counting officer to undertake specific steps, which is not the intention of this provision.
In addition, one effect of requiring co-operation among certain named bodies is that such a requirement could raise a question about whether it was also permissible for the chief counting officer to consult other bodies that are not mentioned there. That problem does not arise in the original drafting.
I understand the sentiments and the intention underlying my noble friend’s amendment.
Lord Campbell-Savours
Will the Minister respond to the question of my noble friend Lord Anderson about the conflict between the requirement on the chief counting officer to encourage participation as he thinks fit and the fact that the Minister may not necessarily reimburse the local authority? If a registration officer believed that it was appropriate to encourage participation by, let us say, running a rapid registration campaign prior to the referendum and got on with it, and then it was decided that because the money was not available he could not proceed, would not that have legal implications for the officer’s failure to act?
Lord Wallace of Tankerness
My Lords, I think the noble Lord is asking whether, if a person is frustrated in his activities—I take a technical approach to this—the post hoc situation would be reimbursement. I take the point and do not wish to diminish it, but perhaps I could have some time to reflect on what he is saying. It is agreed on all sides of the Committee that there should be encouragement, which we do not wish to have cut off.
Lord Campbell-Savours
A local authority registration officer might write a report to the democratic services committee or a department in the local authority saying, “I wish to proceed on this basis because I believe it is an appropriate way for me to encourage participation”, and the local authority might say, “We are sorry but the money is not available and the Government are not going to reimburse us in the event the expenditure takes place”. Surely that must have legal implications for the position of the officer concerned.
Lord Wallace of Tankerness
I do not think that is how it would work. Reasonable expenditure will be reimbursed by the Government. If the expenditure was unreasonable and extravagant and went beyond anything that could be considered reasonable, there should not be an obligation on the Government to reimburse. I can reassure the noble Lord that reasonable expenditure for the purposes set out in paragraph 10(1) and 10(2) would be reimbursed. The noble Lord has put forward a serious hypothetical situation, but anyone would accept that running a registration campaign was a reasonable thing to do. If someone went about it in an extravagant way—which I cannot begin to think of at the moment—that would be deemed unreasonable by most sensible people and it would not be reasonable that taxpayers’ money should reimburse it. However, with a straightforward, reasonable campaign, the Government would reimburse.
On the points made by the noble Lord, Lord Maxton, the Scottish parliamentary elections will be counted first, ahead of the referendum. The selection of the First Minister does not normally follow the election anyway. I recall that in 2003 we did not get down to negotiations about establishing a coalition until the Monday after the election. Nevertheless, the point remains that the Scottish election count will take precedence over the referendum count.
There is a link between this amendment and the amendment of the noble Lord, Lord Lipsey, which relates to the role of the chief counting officer and the powers available to her. Sentiments have been expressed in the debate, as on other occasions, that democratic people were profoundly perturbed by the scenes they saw on the night of the last general election when people were not allowed to exercise their democratic rights. Paragraph 10(1) of the schedule states:
“The Chief Counting Officer must take whatever steps the officer considers appropriate to encourage participation in the referendum”.
The amendment of the noble Lord, Lord Lipsey, would provide that:
“These steps shall include measures to ensure that all those wishing to vote and arriving at the polling station within the appointed hours are able to do so”.
Clearly, the amendment is intended to address the scenes and situations we experienced in May last year.
I can assure the Committee that we take very seriously the problems that arose at certain polling stations. The Government have been considering the Electoral Commission’s report on the issue and, in particular, the recommendation that the law be changed to allow people who have not been issued with a ballot paper but are in the queues at 10 pm to vote. We are not convinced or satisfied that the amendment would enable the chief counting officer to direct that ballot papers are issued after 10 pm—if, indeed, that is the intention of the amendment. As the noble Lord indicated in his speech when he spoke to the amendment, the Electoral Commission report noted that that was not possible because it would not comply with the law. Clearly, the chief counting officer cannot issue a direction that contravenes the existing law. As the noble and learned Lord, Lord Mackay of Clashfern, indicated, that is possibly not something that could be done in the context of this legislation for a referendum alone.
I will try to deal with the other point in a bit more detail. It is important to note that in most cases where the problems occurred in May last year, the Electoral Commission has found that the common factor was inadequate planning processes and contingency arrangements—or, more to the point, that such arrangements were not in place.
The noble Lord, Lord Lipsey, quoted my right honourable friend the Deputy Prime Minister. He quoted him accurately, but perhaps I should just quote a little more of what he said. At Question Time in the other place on 10 November, the Deputy Prime Minister said:
“I happen to think that, in this instance, simply passing a law will not deal with the problem, which was a lack of resources and poor organisation by the returning officer, who acknowledged as much”
—he was specifically talking about Sheffield, where his own constituency is—
“… That is what we need to address; we should not always simply reach for the statute book”.—[Official Report, Commons, 10/11/10; col. 285.]
Officials have met the Electoral Commission, and indeed electoral administrators, to discuss the issue of managing queues at polling stations. It is clear that there are divergent views on the effectiveness of any legislative change, and a significant number of administrators are not in favour of it. Again, that is a reflection of the fact that the problems in that particular case in May last year were because of planning failures and the lack of effective contingency planning.
Given the divergence of views that exist on the specific recommendation of the Electoral Commission and given that there is the general consensus that the problems largely arose from poor planning, we believe there is a need for significant additional discussion before any change to legislation should be proposed, if indeed that is eventually deemed appropriate. There needs to be buy-in from all those who would be involved in administering elections.
Under the Bill, we consider that the chief counting officer already has the necessary powers to provide appropriate guidance, training and support to the regional counting officers, as well as to counting officers themselves, to help address the issues that arose in May 2010. I am aware that some of the contingency arrangements have already changed the ratio of polling clerks to the number of voters at each polling place. We think there is certainly a need for more discussion as to all the potential consequences of any legislative amendment before a change to the principles underlying the existing electoral rules is considered. In these circumstances there is some benefit to having the certainty of the present rules, admittedly with the back-up role that the chief counting officer has the authority to play in giving the necessary guidance, training and support.
Lord Lipsey
Perhaps two things are getting confused here. My amendment would not deal with the strict legislative problem that the Electoral Commission originally identified. That is still under discussion and I agree this is not the appropriate time to put that right. However, my amendment would convey to returning officers the extreme importance that Parliament attaches to tackling these problems. Yes, it would be a declaratory piece of legislation, but that is not without force in this world. The noble and learned Lord might like to reflect on the point that, if he rejects this proposal, it will seem as if the Government are not really taking on board the depth and importance of the problems that arose and the reactions of electors to them. I do not think that is good for the Government and I do not think it is good for government, as a matter of fact.
Lord Wallace of Tankerness
I cannot accept the second part of what the noble Lord has said, because the Government accept that what happened in May last year was serious. There is no doubt about that. Anyone reading this debate would realise that the view on all sides of the Committee is that the situation was serious. I hope to reassure the noble Lord—who accepts that his amendment would not change the legislative basis for that—that there is a distinction to be made, given that it was accepted that in the cases last year the common factor was one of poor planning. In this case, there will be a chief counting officer, who will have a responsibility and already be aware—not least because of the dual role with the Electoral Commission—about the importance of this issue. I am sure the chief counting officer will be well aware of the sentiments expressed and the important and serious points made in this debate. If the noble Lord’s aim was to get a message across, his amendment has provided a very helpful forum and opportunity to get that message across. She has the powers, we believe, to provide the appropriate guidance, the appropriate training and the appropriate support so that these issues will be addressed and the kind of situation that we saw in May 2010 will not arise again.
Against that background, I ask the noble Lords not to press their amendments.
Lord Phillips of Sudbury
My Lords, I really did not want to make heavy weather of this amendment, but I have to say that my noble friend the Minister’s response gave a series of legal interpretations with which I have to disagree. It is unfortunate that I have to disagree, but I do, even though I know that he is advised in these matters and one normally accepts such advice to be beyond question.
The first argument advanced by the Minister was that paragraph 10(1) says:
“The Chief Counting Officer must take whatever steps the officer thinks appropriate to encourage participation”.
He said that such a provision allows the chief counting officer to direct the other officers—regional counting officers and so on—as to what to do and how to do it. I think that is simply wrong. There is no implication of a power of direction in that sub-paragraph. His second argument—
Lord Wallace of Tankerness
I think that I noted that, when undertaking the responsibility, the chief counting officer can use her power of direction under paragraph 5(5) of Schedule 1 to require action. I think that I emphasised the importance of co-operation—which is both permissible and happening in practice—but I referred to paragraph 5(5) in relation to powers of direction.
Lord Phillips of Sudbury
I was coming on to paragraph 5(5), but I am afraid that my first point stands. If the Minister looks back at Hansard, he will see that I am right.
Paragraph 5(5) of Schedule 1 explicitly gives the chief counting officer powers to direct counting officers in the discharge of their functions. I thought long and hard about this and consulted—if he will not mind my saying so—with the noble and learned Lord, Lord Mackay of Clashfern, who knows a thing or two about interpretation. We agreed that the reference there to the power to direct is with regard to the conduct of a referendum. If the Minister looks back on paragraph 5, he will see that it is about the conduct of the poll, the printing of ballot papers, the issue and receipt of postal ballot papers, verification and counting of votes cast—that is, solely and exclusively a power of direction on technical and practical matters.
Lastly, the Minister said that he thought that the situation would be endangered by my amendment because he said that, if there was a right of “knocking heads together” among these five categories of officer, it might involve consultation with outside bodies. However, there is no mandate whatever for that in my amendment. If the Minister says that I have got it wrong—
Lord Wallace of Tankerness
I apologise if I did not express the matter clearly. What I said was that one effect of requiring co-operation among certain named bodies is that it might raise a question about whether it is also permissible to consult other bodies that are not mentioned there. In other words, if you are mandated to consult A, B, C and D, it may raise a question if you wish actually to consult F.
Lord Phillips of Sudbury
There is no reference in my amendment to consultation. This is a power of facilitation and of co-operation among the five sets of officers mentioned. There is no question of consultation, implied or otherwise. This is solely and exclusively among these five sets of people.
I am not a happy mover, I might say, and I would be grateful before I withdraw the amendment if the Minister would agree that this needs further consultation between us. If indeed his arguments prove to be fallacious—he started by sympathising with the sentiment of my amendment—at least there will be the consideration that a further amendment could be brought back at the next stage.
Lord Wallace of Tankerness
I am more than happy to do that. Just looking at it briefly, I think that there is a difference of opinion—not as to intention, but as to our interpretation—and I am more than happy to try to resolve that with my noble friend.
Lord Phillips of Sudbury
On that basis, I am happy to withdraw the amendment.
“( ) The Chief Counting Officer is entitled to recover expenses incurred by that officer for or in connection with the referendum if—
(a) the expenses are of a kind that would otherwise have been incurred by counting officers or Regional Counting Officers, and(b) the Chief Counting Officer considered that it would be more economical for the expenses to be incurred by that officer instead.”
Lord Wallace of Tankerness
My Lords, this group contains Amendments 110B, 110C, 110C, 110D and 110E. The amendment would give the chief counting officer, who is chair of the Electoral Commission, the power to incur expenses for the effective conduct of the referendum and in certain limited circumstances, make payments in respect of those expenses out of moneys to be provided from the Consolidated Fund. I can assure the Committee that the chief counting officer will be able to spend conduct moneys only where doing so provides a clear financial benefit. The Royal Mail, for example, has indicated that it may be able to provide a cheaper service for the sweeps of mail centres—a service that ensures that any votes still in the mail centres towards the end of polling day are identified, extracted and provided to returning and counting officers before the close of poll that evening—if it can contract for this on a national basis with one individual rather than having to negotiate and contract with more than 350 officers who will be conducting the poll at local level.
The amendment would help to make the administration of the referendum easier for the chief counting officer and for counting officers, and provides an opportunity for savings to be made on the conduct of the poll. I beg to move.
Lord Falconer of Thoroton
This seems very sensible, but I am slightly bewildered. How on earth does the chief counting officer not have that power anyway?
Lord Wallace of Tankerness
My Lords, when this issue arose, the view was taken that it was uncertain that that power existed and hence there was the need to put it beyond peradventure that it did. The issue was flagged up by the example of the Royal Mail that I gave, and there was concern that that power did not exist. As the noble and learned Lord says, it is a sensible power and one which I hope will commend itself to the Committee.
Lord Falconer of Thoroton
This is an important point which my noble friend Lord Foulkes has put so accurately. The position should not be different in England and Scotland. In England, interest is sufficient, which means a general interest—almost in a layman’s sense—in the subject matter, whereas in Scotland, interest and title are needed, title meaning, as my noble friend Lord Foulkes said, some legal relationship which gives them a right to sue. The amendment would make Scotland and England the same in relation to whether you are entitled to challenge an electoral process which is identical on both sides of the border. That seems sensible. I would be interested to hear what the Minister has to say.
Lord Wallace of Tankerness
I am grateful to the noble Lord, Lord Foulkes, for bringing this amendment forward. He and I well know that the matter has been raised by the Law Society of Scotland. Indeed, I tabled a similar amendment in the previous Parliament.
The amendment would amend the provisions so that a challenge brought through judicial review in Scotland can be launched if its purposes are on the same basis as proceedings elsewhere. In Scotland, there are two separate tests for bringing judicial review, in that a petitioner has to demonstrate both title and interest, whereas in England, Wales and Northern Ireland there is a single test of interest alone.
The noble Lord, Lord Foulkes, also mentioned the recommendation made by Lord Gill, the Lord Justice Clerk, in his Report of the Scottish Civil Courts Review. However, I am concerned that because of the way in which this amendment is drafted, it will not have the desired effect. By stating that,
“the petitioner’s interest alone shall be sufficient to enable a petition to be lodged”,
it has almost gone too far and would effectively disapply the need to establish all other matters when considering a case for judicial review—including, indeed, whether there is sufficient legal grounds for a challenge.
The other, perhaps more practical, point is that it is difficult to see what the practical effect would be, as we think it is likely that the Scottish courts would entertain a judicial review from any elector entitled to vote at the referendum or at parliamentary elections and any permitted participant. By their very nature, they have an interest—they were taking part in the election.
We should be mindful of the fact that this issue goes wider than the referendum alone. It raises important issues about the nature of judicial review in Scotland, not least those flowing from Lord Gill’s report, and the circumstances in which they should be permitted to raise petitions for judicial review. That is an important issue. It is one that undoubtedly is receiving detailed consideration, not least by the Scottish Government and the Scottish Parliament. It would not be helpful if this Bill somehow tried to pre-empt it on an ad hoc basis, particularly, as I have indicated, we believe that an elector in Scotland would be able to raise a petition.
Lord Foulkes of Cumnock
On the key point, is the Minister saying that because of the recommendation of Lord Gill, he believes that a petitioner in Scotland could raise it on interest alone, without any title, so it would in effect be the same as in England? I am not quite clear.
Lord Wallace of Tankerness
My Lords, if the noble Lord will bear with me, the Lord Justice Clerk, Lord Gill, recommends in his report that the separate test of title and interest be replaced by a single test, that test being where the petitioner has demonstrated a sufficient interest in the subject matter of the proceedings. That is not specific to this referendum. We have a quite important change in the law of judicial review in Scotland anyway and it goes along with numerous other recommendations on civil procedure in the Scottish courts. These matters are, I am aware, under consideration, but it would not be appropriate in this Bill to do it on a one-off basis, particularly in circumstances where we believe that being a participant in the referendum, one would qualify to challenge, if indeed that situation should ever arise.
Lord Falconer of Thoroton
That is very helpful. I read the noble and learned Lord, Lord Wallace of Tankerness, as saying that the current requirement in Scotland for judicial review is title and interest. He is expressing the view from the Dispatch Box that if you were an elector in the relevant election that you wished to challenge—the referendum—that would give you title and interest for the purpose of Scottish judicial review. That being so, the difficulties and dangers of trying to do an ad hoc change here do not arise and we should be reassured that any elector would be able to bring a judicial review challenge in Scotland, just as they would in England.
Lord Wallace of Tankerness
As I am sure the noble and learned Lord knows, these will ultimately be matters for the court but that is certainly our understanding, or my belief.
Lord Neill of Bladen
Before the noble and learned Lord finishes on that point, I feel some concern that he is not prepared to put on to the statute book the view which he has just expressed: that title and interest would necessarily be found by a court to exist here. The worry would be that there could, theoretically, be people advising in Scotland who will be unaware of the discussion now taking place and of the deliberate abstention from following up Lord Gill’s advice on a one-off basis on this very point, where there is potentially a conflict between the practice in Scotland and that in England. Would it not be possible to think of some way of putting on to the statute book information so that anyone advising would see that title and interest were thought to be, by the Minister or by the Government, both present in this case?
Lord Wallace of Tankerness
That is an important point, one which I wish to reflect on. I think it is satisfactory as it stands, but I understand what the noble Lord is saying: that there may be circumstances where, in the absence of any reference, someone may not appreciate that fact. Without making any commitment, I will look at that and see whether there is a way. As I have indicated, as the amendment stands there is a problem, too. In fact on interest alone, regardless of anything else, it would qualify and I am sure that is not what the noble Lord intended.
I think I am right in saying that the debate on whether the schedule be agreed is also a part of this, but perhaps I can reply later to that debate as part of this group.
Lord Campbell-Savours
I want to go back to my earlier intervention. As I understood the noble and learned Lord’s reply, under paragraph 10(5), the Minister may reimburse reasonable expenses incurred by a registration officer for a local authority. Now, if the Government are in a position to reimburse such reasonable expenditure prior to the referendum, should that information not be communicated to local authorities? It might well be that some local authorities want to run a blitz campaign prior to the referendum, to increase registration. The Government appear, in the answer that the noble and learned Lord gave me, to be to some extent offering them the resources as long as the expenditure is reasonable. Perhaps the Minister might write to me on this point, because I am sure that local authorities will have picked up on his responses to my earlier interventions.
Lord Wallace of Tankerness
I am certainly more than happy to write to the noble Lord on that point. I do not think that I need to elaborate on what I said to him before. I want to indicate briefly that Schedule 1 makes provision about the key aspects of the conduct of the referendum and the regulation of the referendum campaign. The approach of the Government in doing this has really been to replicate the provisions that are made for parliamentary elections, where they are appropriate. However, there are some areas where we need to make specific provision to tailor-make the provisions for this referendum. On the campaign spending and funding framework already in place for referendums, what there is under the PPERA will generally apply. I commend this schedule to the Committee inasmuch as it tries to replicate, wherever appropriate, the rules which are now well tried and tested.
Lord Foulkes of Cumnock
I am grateful to the Minister and, particularly, to my noble and learned friend Lord Falconer for their exchange, which helped to clarify the situation. I was surprised because this amendment was in fact drafted by our mutual friend Michael Clancy, who has done a lot of these before and understands parliamentary drafting very well. However, I was particularly grateful for the intervention from the noble Lord, Lord Neill, on the Cross Benches, and for the Minister’s response: that he will look at this again to see whether there is a way to achieve it so that Scots and English people will have the same rights guaranteed on both sides of the border, without any court having to make a decision and without creating a precedent which might cause any difficulties for other aspects of judicial review. On the basis that the Minister has been very helpful in giving me that assurance, I beg leave to withdraw the amendment.
Lord Falconer of Thoroton
I should perhaps have asked this before but, on page 25, Schedule 1 requires the Electoral Commission to,
“prepare accounts in respect of their expenditure in relation to the referendum”,
only if,
“directed to do so by the Treasury”.
Is the Treasury going to give such a direction? It seems extraordinary that we would not know what the expenditure of the Electoral Commission was on the referendum unless a direction had been given by the Treasury. It might be that this is, as it were, language which is always in, and that it will of course give that direction, but I thought that it was a very odd way of doing it. It would mean that we could not find out how much had been spent on the referendum, but you can bet your bottom dollar that there will be a lot of questions asked about how much the referendum cost at some stage.
Lord Wallace of Tankerness
My Lords, I probably share the noble and learned Lord’s view. It is almost counterintuitive to think that the Treasury might in some way not wish that—well, it may be, I do not know. Freedom of information requests might well flow fast and furiously if that did not happen. Perhaps if I talk long enough, I may get a definitive answer on whether this is indeed something that generally appears in such legislation or whether there is some reason unbeknown to us.
The answer is that it is part of the Electoral Commission’s accounting framework that it normally accounts to the Speaker’s office. I suspect that the paragraph makes provision that the accounts in relation to the referendum could be extracted. If that is incorrect, I will ensure that a proper clarification is intimated to the noble and learned Lord and duly circulated.
Lord Falconer of Thoroton
As the noble Lord the Leader of the House said, I am getting a sapling of an idea of what the reason is and I think I understand. This is not a major point, but perhaps the noble and learned Lord could write. He should not bother to write if the sapling of the idea is, as I think was said, that we have to do it slightly differently because of this and that there will be accounts. If there will not be accounts available, perhaps he should write; otherwise, we can forget it.
Lord Falconer of Thoroton
My noble friend Lord Rooker has Amendment 113 in this group, but he has had to leave. It is effectively the same as the amendment tabled by my noble friend Lord Foulkes in that it proposes that the polls should shut at 11 pm. The point has already been made but it seems a good thing that the time should be extended for people to vote. There may be reasons why that is a bad thing. I will wait to hear what the Minister says.
The next group of amendments, which would have been moved by my noble friend Lord Rooker, but which I will move because he cannot be here, seek to deal with the overcrowded polling stations issue, which we have already discussed and in which there was an impressive intervention by the noble and learned Lord, Lord Mackay of Clashfern. There was quite broad support for the amendment tabled by the noble Lord, Lord Phillips. The amendment that proposes that the polls should shut at 11 pm, as opposed to 10 pm, might, subject to the information that the Minister has, be of assistance in relation to that. If the number of people who would vote between 10 pm and 11 pm was quite low—even though there might be a late surge—it would reduce the likelihood of what happened in the previous general election happening again. It might, for that additional reason, be worth contemplating.
Lord Wallace of Tankerness
I thank the noble Lord, Lord Foulkes, for raising these issues with his amendments, which would provide electors with earlier notice of the referendum and give voters extra hours to cast their ballots. As noble Lords are aware, it is the Government’s intention that the referendum should be held on 5 May. Therefore, any alterations to the timetable and the hours of polling proposed for the referendum would inevitably create inconsistencies between the rules governing the referendum on the one hand and those governing the elections scheduled to take place on 5 May, with which the referendum will be combined, on the other. Fundamentally, this would be confusing and unhelpful for voters. Noble Lords may already have noted that that view is supported by the Electoral Commission. The amendment would also be inconsistent with the combination of rules in Schedules 5 to 8 to the Bill.
I turn to the first part of the amendment, which deals with the referendum timetable and the issuing of the notice of poll. With the exception of the Scottish parliamentary election, the 25-day timetable will be used for all other polls that are scheduled to take place on 5 May 2011. During the Bill’s passage through Parliament, we specifically amended the deadline for issuing the notice of poll from 16 to 15 days before the date of the poll. The noble Lord’s amendment would take that up to 20 days before the date of the poll. The purpose of the amendment was to ensure that a consistent deadline for the publication of the notice of poll applied for most of the polls that will be combined across the United Kingdom.
Only in Scotland will the deadlines for publication of the notice of the two combined polls be different from each other, due to a slightly different timetable that applies to Scottish parliamentary elections. However, moving the deadline to 20 days before the poll would lead to inconsistency right across the United Kingdom and potential confusion for voters and electoral administrators. The Electoral Commission will take steps, however, to ensure that electors are aware of the referendum before the statutory timetable commences, and electors will not have to wait until notice of poll is issued, or until they receive their official poll card, to change their voting arrangements should they wish to do so.
I turn now to the amendment on polling hours. It is an important amendment and important arguments have been adduced in its favour. It would extend the polling hours for the referendum, which could be difficult for polling staff and polling agents. It may even be difficult for people who rely on public transport to get to a polling station for 6 am for the opening of the poll. At the end of the day, extending the close of poll by one hour could have implications for the staff at the time of verification, not least in those cases where two polls will be combined on one day. However, perhaps more importantly, it could be confusing to voters to have polls taking place on the same day but closing at different times. Under this proposal, voters would turn up before 7 am or after 10 pm to vote in the referendum, but would perhaps be told that they were unable to vote in the Scottish parliamentary election, the Welsh National Assembly election or some of the local government elections in England. I suspect that would increase, rather than reduce, the possibility of voters missing their opportunity to vote, which could cause some dissension.
The important point, which I think the noble Lord, Lord Foulkes, mentioned, is that the opportunities for postal voting and voting by proxy are now such that if the current polling hours are unsuitable for electors, they still have the opportunity to vote. I readily accept that in many cases work patterns and family patterns may make it difficult, but it is now possible to vote either by proxy or by post. As we all know from taking a keen interest in elections, the number of postal votes has increased considerably; obviously a good number of people take that opportunity. It may be that the message about opportunities for postal and proxy voting can be reinforced in the context of information relating to the polls.
It is also important that the issue regarding the timetable for the polls goes wider than the referendum alone. It should perhaps be reviewed in the longer term for future national elections and referendums. With these words and assurances, I hope the noble Lord will withdraw his amendment.
Lord Campbell-Savours
My Lords, I want, very briefly, to remind civil servants, when they are drawing up the wording as currently set out in the Bill, of what happened with the ballot paper in the first mayoral elections in London. We had made recommendations as to what should be on the ballot paper; the civil servants basically took over the agenda and wrote the question; I objected very strongly, but of course as usual, I was overruled on the detail; and the result was that a lot of ballot papers in the first mayoral elections in London were wasted because of the framing of the question.
Wording is crucial and I think it has to be politicians who decide on that wording, because it is only we who understand how electorates respond to certain language. Therefore, I hope that a debate takes place within the department about whether the current wording in these areas of instruction is right and whether the wording that my noble friend wishes to introduce for the benefit of people voting in the referendum might be better. The Minister should take this as a very serious amendment: it might not be the final wording, but let there be a further debate, because if it does not take place, the danger is that the events of the first mayoral elections in London may well be repeated.
Lord Wallace of Tankerness
My Lords, I am grateful to the noble Lord, Lord Rooker, for tabling these amendments; he indicated to me that he had to leave and that they would be spoken to by the noble and learned Lord, Lord Falconer. They raise important issues which it is very helpful for the Committee to have the opportunity to address. Amendment 115 obliges by law that counting officers should not allocate more than 1,050 electors to any polling station within their voting areas. This is a very worthy and laudable attempt to address the problems, referred to by the noble and learned Lord in moving this amendment, which arose at some polling stations in the May 2010 election, when a number of electors were unable to cast their votes due to queues forming at certain polling stations. Although these incidents were isolated, they are certainly not taken lightly—I emphasise that again.
It is the responsibility of electoral administrators to provide for the smooth running of the voting process in elections, and that includes contingency plans to cater for events such as when there is a higher than expected turnout at one or more polling stations for which they are responsible for allocating voters and for staffing. The chief counting officer for the referendum is, of course, the chair of the Electoral Commission and she has the power to direct all other counting officers across the United Kingdom who administer the referendum. The Electoral Commission has indicated that the chief counting officer intends to issue directions to counting officers as to the maximum number of electors to be allocated to any polling station and the associated minimum number of staff to be present at each polling station. As I indicated in response to an amendment moved earlier by the noble Lord, Lord Lipsey, the Electoral Commission has already started to issue guidance to counting officers on the number of polling staff who will be required.
I am therefore concerned that the amendment would remove any discretion, both of the chief counting officer and of all other counting officers, to decide how many electors should be allocated to each polling station and the number of staff who should be present at each polling station. To give an example, it does not seem sensible to require that a village of, say, 1,200 electors should have two polling stations when there is no suggestion that previous arrangements for that village have proved inadequate. Indeed, it might even mean that fewer staff were available at each polling station to assist voters. It is that kind of flexibility which we would not like to remove from the chief counting officer.
We know that queues arose in the elections of May last year primarily because of planning failures and the lack of effective contingency planning. However, we believe that at the polls being held in May this year, better guidance, better staff training and support and better planning procedures in the run-up to the polls would be more appropriate and more effective in addressing the issues that have been raised, as opposed to placing statutory limits on the number of voters who can be allocated. I hope that the chief counting officer’s stated intention to issue directions to counting officers on this issue will reassure noble Lords and that the House will recognise that the amendment would reduce flexibility, and that that in turn could increase risks and not necessarily prove good value for money.
On the second amendment, which would oblige all counting officers to print 100 per cent of ballot papers, I must say that until last year I always thought that that was the case anyway. The purpose is that they should print the same number of ballot papers as there are voters on the electoral register in their area of responsibility. Currently, they must print only the number of ballot papers that they feel is necessary.
Lord Wallace of Tankerness
My Lords, this is a minor and technical amendment to correct a cross-reference under rule 13(6)(a) of the referendum rules. The effect of this minor amendment is that the number of ballot papers counted or votes cast may not be questioned by reason of any non-compliance with the provisions under rule 13(3) for England and rule 13(4) for Wales, Scotland and Northern Ireland relating to the provision of polling stations. Noble Lords will note that, as it stands, the reference is not to rule 13(3) and rule 13(4) but rather to paragraph 13(5)(a) and (b). The purpose of this amendment is to get the cross-reference correct. I beg to move.
Lord Falconer of Thoroton
Just for clarity, the reason why sub-paragraph (5) is not now included as an exception in sub-paragraph (6)(a) is because it is included in sub-paragraph (4). Is that right? Looking at it to start with you want it to apply to sub-paragraph (5) as well, but sub-paragraph (5) appears to go in the drafting because the deletion in the amendment goes up to the second “or” in the second line. You would not want a vote not to be counted if the polling station happened to be in the wrong district. I assume that sub-paragraph (5) is deleted because it is included in sub-paragraph (4), or am I wrong about that? I cannot see any reason why a technical failure of the position of the polling station in Wales, Scotland or Northern Ireland should vitiate the vote. I assume it is because the polling stations in sub-paragraph (5) are included in sub-paragraph (4). Officials are nodding. It might be better if the noble and learned Lord says yes.
Lord Wallace of Tankerness
The noble and learned Lord has accurately identified the issue and that is, as it were, the error that this amendment seeks to correct.
Lord Foulkes of Cumnock
My noble friend is right in principle, but because we have this artificial deadline of having to agree everything before the referendum on 5 May, I do not think that there would be the time to do that. Now I know why the noble Lord, Lord Rennard, enjoys being such a nitpicker. It is quite fun challenging the amendments put forward by Labour Peers.
However, I think that the intention behind what my noble friend suggests is absolutely right. In a number of elections overseas, ballot boxes have been stuffed in advance by supporters of one candidate or another and elections have been challenged. That could happen in a referendum. The principle is very important, notwithstanding the technical problem that I have raised in the unavoidable absence of the noble Lord, Lord Rennard.
Lord Strathclyde
The noble Lord, Lord Campbell-Savours, is right: it would be far better to deal with and debate these issues in another forum or on another Bill. We resist the amendment, which, apart from anything else, we believe to be defective. The amendment requires the presiding officer immediately before the commencement of a poll to show the first elector, rather than anyone present in the polling station, that the ballot box is empty.
However, as the noble Lord, Lord Maxton, pointed out, no elector would be allowed into the polling station prior to the poll commencing at 7 am, which means that the presiding officer would be unable to show the first elector that the ballot box was empty before the start of the poll. In addition to the timing difficulties associated with the amendment, it can be argued that it is not necessary, as referendum agents will be able to appoint polling agents who may observe the presiding officer showing the empty ballot boxes before they are sealed prior to the start of the poll. Therefore, the question does not arise.
Lord Strathclyde
“(a) in relation to a voting area in England or a voting area in Wales that is not within sub-paragraph (b), the registration officer of the local authority in whose area that voting area is situated;(b) in relation to a voting area in Wales that comprises any part of the area of more than one local authority, the registration officer appointed under section 44(3)(b) of the Electoral Administration Act 2006 in respect of the Assembly constituency that corresponds to that voting area.( ) In paragraph (3)—
“local authority” has the same meaning as in paragraph 4 of Schedule 1;
“Assembly constituency” means a constituency for the National Assembly for Wales.”
Lord Strathclyde
My Lords, Amendment 122ZA is a minor and technical amendment to the definition of “relevant registration officer” under rule 53 of the referendum rules. This amendment will ensure that in Wales, as is already the case in other parts of the United Kingdom, the relevant registration officer will be the same individual for both the combined polls. I beg to move.
Lord Strathclyde
Lord Falconer of Thoroton
My Lords, Schedule 2 is important. The noble Lord, Lord Tyler, is right that it reflects experience from other elections. Looking at the 15th Marshalled List, Amendments 112A to 122A are specific amendments to Schedule 2, so I am not sure whether the noble Lord, Lord Tyler, was right when he said that there were no amendments to Schedule 2. I am interested in a number of specific issues that relate to the interaction between the referendum and other polls. First, in paragraph 13 (3), it is said that in England, Wales, Scotland and Northern Ireland,
“the polling station allotted to electors from any parliamentary polling district wholly or partly within a particular voting area must … be in the parliamentary polling place for that district unless the parliamentary polling place is outside the voting area”.
Why is the parliamentary polling area being chosen for a referendum and for the other votes when Parliament is not the district for the count, nor the place for which people are voting? I am surprised that that has been chosen.
Secondly, paragraph 22—this is for the referendum—places upon the presiding officer the,
“duty to keep order at the officer’s polling station”.
That makes the presiding officer the person responsible. Is it envisaged that the same presiding officer will be appointed for the local elections and the parliamentary elections? I assume that it is. If not, who is in charge of the polling station? Issues might arise in relation to the conduct of a polling station of the sort, for example, that arose at the end of the general election as to when to close the doors, or what to do about the queues. There needs to be some degree of certainty as to who is in charge. I assume that that will be achieved by the same person being appointed as the polling officer.
Thirdly, the schedule envisages a polling agent being appointed and a referendum agent being appointed. The purpose, as I understand it, of a referendum agent and a polling agent being appointed is that those two “agents” are responsible for seeking to prevent personation in the polling station. Is it envisaged that this would be two people, or is it envisaged that it would be one person for the same polling station? Do the same rules apply both in relation to electoral law on referendum voting and the polling voting? Can there be a conflict? Again, we would be looking for the same person to be appointed to deal with both.
The thing that I cannot find in the rules, though I am sure that it is here somewhere, is what prohibitions there are on material relating to the referendum within the polling station. For example, will it be permissible to have within the polling station the “neutral documentation” provided by the Electoral Commission describing the two sorts of system, or will that be prohibited? This relates to the question legitimately raised by my noble friend Lord Grocott regarding the extent to which help on the issues will be provided to individual voters. It is obvious that partisan material should not be provided but what, if any, material will be allowed in the polling station which is genuinely intended to assist voters? If the answer is nil, I would accept that and understand it, but equally I would not regard it as objectionable if neutral material prepared by a neutral body were allowed. It would be useful for the Committee to be given answers to those questions.
Lord Strathclyde
My Lords, I am glad that the noble and learned Lord agreed with my noble friend Lord Tyler and said that he was right, as he is in so many things. The noble Baroness, Lady Liddell, asked whether I was impressed with the depth of her passion on this subject. I confirm that I am. I understand exactly what she was saying. I say to those who echoed her remark about cross-party talks that I am sure that if the Labour Party were to write in and ask for those cross-party talks, that would be accepted, if they have not already taken place. The noble Baroness is right that this matter should be conducted in a non-partisan manner.
The debate naturally strayed far and wide across the gamut of electoral law and I will follow up some of the more detailed points in writing. The noble Baroness, Lady Liddell, said that she was frantic, unhappy or depressed—I cannot remember which word she used—about the 1979 referendum. My memory of it is that it went rather well. It had a good result and was excellent in many respects. Therefore, I do not share the noble Baroness’s unhappiness, which perhaps shows the width of the gulf between us on these great issues.
Lord Foulkes of Cumnock
Was the noble Lord happy that, although there was a majority in favour of a Parliament for Scotland, it did not meet the threshold required? Is that why he was happy about it?
Lord Strathclyde
That is an interesting point. I should be more specific. What was so good about it was that it brought in the vote of confidence and the end of that Labour Government. The noble Lord will remember that well.
The noble Lord, Lord Myners—
Lord Crickhowell
Surely it is not right to reply to the noble Lord, Lord Myners, who has broken the conventions of the House by not staying for the wind-up.
Lord Strathclyde
I thank my noble friend Lord Crickhowell for bringing that to the Committee’s attention. He obviously felt strongly enough about it to raise it. The noble Lord has no doubt slipped away in his stretch limousine waiting outside your Lordships' House. I can confirm to the Committee, if there was any doubt, that the Leader of the House of Lords no longer has a limousine, at a substantial saving to the Exchequer—a saving which the noble Lord, Lord Myners, when he was a Minister at the Treasury, said would be quite impossible.
The noble Lord, Lord Soley, asked whether the vote of an elector who signed outside the box in a postal voting statement or other statement would be considered. Counting officers should have a process in place to determine such cases. Their system should be able to pick up signatures which are valid but stray slightly outside the box. The noble Lord, Lord Campbell-Savours, asked whether the public can make representations on polling station locations. They can do so.
Lord Soley
The Minister slid over that rather quickly. This is an important point and it is what scrutiny is for. He seems to be saying that in certain circumstances a signature outside the box would invalidate the vote. If that is the case, frankly it ought to be stated on the form that if a person strays outside the box, the vote is invalidated. I know that this applies in other situations but it is an important point. If people, particularly the infirm, stray outside the box and it is within the remit of the returning officer to make a judgment on that, if he decides against the person, that person’s vote is invalidated.
Lord Strathclyde
My Lords, I said that I would write on some of the more technical points but, as far as I understand it, some discretion must be left to the local officer to decide whether the signature is valid. I am very happy to follow that up in a letter.
Lord Mackay of Clashfern
My Lords, I have been a returning officer on two occasions. The returning officer has the authority to decide whether the paper is in order. The precise rules are rather particular and they are certainly not all on the ballot paper. If they were, the ballot paper would not have much else on it. As a returning officer, I have seen a quite remarkable number of peculiar ballot papers, with all kinds of communications on them. This is a matter for the returning officer and I am sure that the rules are exactly the same as regards the referendum. The returning officer, who is independent, would decide these matters, but all the rules are not expressed. When you become a returning officer, you must learn all these rules, and it is a bit of an ordeal to get them all into your head.
Lord Strathclyde
My Lords, I am very grateful to my noble and learned friend. The fundamental point is that there is nothing really different about these rules and regulations. They are modelled on existing provisions which govern the conduct of elections. That is why I refer the noble Lord, Lord Campbell-Savours, to the Representation of the People Act 1983. If he looks up Sections 18B to 18D, I think that he will find the answer to his question. Likewise, the noble Lord, Lord Grocott, who asked about poll clerks advising people on the subject matter of the referendum. We would not expect clerks to advise on that but there will be guidance in the polling station on how to complete the voting paper and, as we have already debated several times, the Electoral Commission and the campaigns will be educating the public.
There is another point. The noble Lord, Lord Grocott, has got it into his head that there is something very strange and very new being done here. If you live in Scotland, Wales, Northern Ireland or London, you have already voted in referendums and PR elections. I think we had more local referendums in the 13 years of Labour Government than this nation ever had. I think people are quite used to the idea of going into a polling booth and being asked a question other than who they wish to vote for: on whether they want local mayors, for instance, or whether they want regional government—that was a great question the Labour Party asked. I also think that he has underestimated the degree of interest that will be generated, and is being generated, by the campaigns in the run-up to the referendum.
Lord Maxton
I accept the point the Minister is making. I may be wrong here but I do not remember a referendum held on the same day as other elections. This is what is going to confuse many electors, rather than the fact that they are being asked to vote yea or nay in a referendum.
Lord Strathclyde
My Lords, the last Labour Government famously had a referendum in London on the London mayor on the same day as the London local elections.
I am impressed—
Lord Grocott
The Leader of the House quotes previous referenda, but I think he is making a fundamental mistake in terms of public awareness of what is happening. In the European referendum in 1975, there was not the slightest doubt in anyone’s mind about what was at stake. It was a choice about whether we stayed in or not. Neither was there any serious doubt about what was at stake in the referenda on Scottish and Welsh devolution. I am simply reflecting, I am sure, what is the truth—that large numbers of people will not know any detail about how the alternative vote system works. In this draft piece from the Electoral Commission there are four pages of notes with bar charts on how the alternative vote system works. If he really thinks by 4 May, or whenever it is, we will be able to go down any street in Britain and people will instantly be able to say how the alternative vote system works, he really does inhabit a different world from the rest of us.
Lord Strathclyde
My Lords, I am sorry to say that there may be a generational issue here. My children, who are at school, are taught different electoral systems. This has been done for the past 25 years. I do not think that it is very complicated. I was rather impressed by the Electoral Commission’s work. The noble Lord asserts that nobody will be interested. I say that they will be. At least they are being given a choice, which is important. To be fair, the Labour Party believed a year ago that this was important enough to put in its manifesto. It was the only party to do so.
The underlying legislation for this is of course Schedule 1 to the Representation of the People Act 1983, with which many noble Lords will be familiar. I hope that noble Lords opposite will find that this is a useful subject that they may wish to debate on one of their Thursdays, or in a Question for Short Debate, because there are important issues that they will want to discuss. Under this schedule, appropriate modifications have been made to reflect the features and language specific to referendums. For example, references to “returning officers” have been substituted by “counting officers”, and references to “election agents” have been replaced with “referendum agents”.
Two aspects of the rules merit special mention. They govern the count and recount procedures, and a power enabling the chief counting officer to modify some forms contained in the Bill. Counting officers will be responsible for the conduct of counts in their respective areas, which will be conducted on a regional basis. Like local returning officers in the European parliamentary elections, referendum agents will be permitted to attend the count, much like election agents. Rule 42(2) specifies that a referendum agent and certain designated counting agents may require a counting officer to recount votes for that area. As with UK and European parliamentary elections, a counting officer will have the discretion to refuse any such request if he deems it to be unreasonable. Rule 43 gives power to both regional counting officers and the chief counting officer to issue a direction for a recount of the votes only in one specified circumstance: where the officer requesting the recount has reason to doubt the accuracy of the count under rule 43(4).
The whole schedule takes account of the views of the Electoral Commission and the electoral administrators, with whom we have worked particularly closely in developing this part of the legislation, given that it sets out the rules on how the poll will be run on the ground. I go back to the suggestion made by the noble Baroness, Lady Liddell. It may well be a good idea for party officials to get together to discuss this, and I hope that the offer will be taken up.
Lord Strathclyde
Lord McAvoy
My Lords, I have a brief question for the Leader of the House. I am sorry that he did not respond to the point that I made in an earlier debate. I know that perhaps he did not have the information to hand, but I thought that he might be able to offer me some guidance. My question is about paragraph 4(1), which states:
“Where a person applies to the registration officer to vote by post in the referendum, the registration officer must grant the application if … the officer is satisfied that the applicant is or will be registered in a relevant register”.
I am not sure what that means. How would the registration officer forecast or be aware that the person concerned is registered in a relevant register?
Lord Strathclyde
My Lords, perhaps I could follow that up in a letter to the noble Lord.
Lord Strathclyde
Lord Strathclyde
My Lords, we are now moving so fast. The Committee will be relieved to know that this is a minor and technical amendment to the modification that Schedule 4 to the Bill will make to Regulation 61 of the Representation of the People (England and Wales) Regulations 2001 as it applies for the purposes of a referendum. It is necessary to ensure that the counting officer is provided with any revisions which are made to any of the absent voter lists used for the referendum, and it provides further clarity to the absent voting provisions in the Bill. I beg to move.