Parliamentary Voting System and Constituencies Bill
(13 years, 9 months ago)
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Lord Campbell-Savours
I wish to intervene in this debate following a contribution yesterday by my noble and learned friend Lord Falconer of Thoroton, when he drew our attention to that fact that large sections of the Representation of the People Act 1983 have been transferred into Schedule 4. That gave me cause to read Schedule 4.
As a preamble to my remarks, I suggest to the noble Lord, Lord Tyler, that we do not always move amendments to clauses and schedules on Bills until Report, because often it is important to get an explanation of those schedules and clauses prior to tabling amendments. That is precisely what I want to do on this occasion.
To begin with, I shall concentrate my remarks on Section 61 of the 1983 Act, on other voting offences, which is transferred on page 97. I am sorry to refer to a page number, but I am not a lawyer. Section 61, as modified in this proposed legislation, will say that:
“A person shall be guilty of an offence if”,
that person votes,
“knowing that he is subject to a legal incapacity to vote in the referendum”.
That is under new paragraph (a). Under new paragraph (b), it is an offence if he votes,
“knowing that he is or the person to be appointed is subject to a legal incapacity to vote in the referendum”,
and, under new paragraph (c), it is an offence if he votes for a person knowing that they are subject to a legal incapacity to vote. What is interesting about those provisions, which have been transferred from Section 61 of the original Act, is that, when I read through the whole schedule, I realised that parts of it were perhaps not enforced in the original 1983 legislation. Have there actually been prosecutions under these sections in the 1983 Act? Could the Minister establish whether that is the position?
Also on page 97—as I say, I am not a lawyer, so I have to refer to the page—in the wording transferred directly from Section 61, there is another part that is not clear; when I was discussing this with colleagues there was a little ambiguity about what it means. It says:
“A person shall be guilty of an offence if … he votes on his own behalf otherwise than by proxy more than once in the referendum”.
Some people might interpret that as meaning that a person has two votes for themselves. I wondered whether the Minister had considered the possibility of that being the case.
Schedule 5 sets out the position more clearly: it is illegal to vote more than once in the same referendum,
“unless you are appointed as a proxy for another person”.
The wording that is used in the 1983 Act has endured for the past 25 years, but I wonder whether anyone had sought to interpret it in the way that a minority might, which was not the intention of the 1983 Administration when they brought these sections into law.
Section 61 also says:
“A person shall be guilty of an offence if … he votes on his own behalf in person in the referendum when he is entitled to vote by post”.
I was unaware of this. My noble friend says that it cannot be right. If you look at Schedule 5, it is more clearly set out on page 166. The 11th instruction states:
“After receiving this postal vote, you cannot vote in person at a polling station in the referendum[s]* or election[s]*”.
I wonder how many people know that. I wonder how many people receive a postal vote, do not use it and walk into the polling booth to vote, not realising that, according to the provisions of this Act as I interpret them, they are breaking the law. I did not know that.
Lord Campbell-Savours
My noble friend knew but I can tell that there are others in the Chamber who did not.
Lord Maxton
I am not absolutely sure about this but I seem to remember that this happened to me once. I could take the postal vote with me and hand it in at the polling station, rather than be barred from voting, as such.
Lord Campbell-Savours
That may well be the case. There may well be an explanation as to how it can be done. All I am saying is that there will be some people who will have a postal vote, not use it and go into a polling booth to cast their votes. It may well be that Members of this House did so formerly; of course, they cannot vote now.
Baroness Golding
It will be marked by the returning officer on the sheet that they have a postal vote. Therefore, they will not be entitled to have another vote handed to them when they go to the polling station. That has always been the case, as far as I can remember, and it is still the case now.
Lord Campbell-Savours
That may well be the explanation. If so, that element of confusion in my mind is no longer of any relevance. However, I turn to page 102, where there is a particularly interesting section. Section 100 of the 1983 Act, “Illegal canvassing by police officers”, is largely transferred to the Bill. That section reads:
“No member of a police force shall by word, message, writing or in any other manner, endeavour to persuade any person to give, or dissuade any person from giving, his vote, whether as an elector or as proxy”,
but the Bill would delete “as proxy” and substitute “in the referendum”. It does not say “No member of a police force acting as a police officer”; it simply says:
“No member of a police force”.
If we were interpreting that literally, I would suggest that it meant that, as a police officer, you cannot,
“by word, message, writing or in any other manner, endeavour to persuade any person”—
that could be a friend or relative—
“or dissuade any person from giving, his vote, whether as an elector”,
in the referendum. I would have thought that that was unenforceable, so why is it in law? Why does it remain in the 1983 Act in that form when there have probably been no prosecutions—unless I can be corrected—over the 27 years since the legislation was originally introduced?
The transferred Section 111, on page 102 of the Bill, is headed, “Prohibition of paid canvassers”. It states:
“For ‘an election’ substitute ‘the referendum’”.
In other words, the Bill has been made to mimic the provision in the 1983 Act. Section 111 of the 1983 Act states that it would be an offence:
“If a person is, either before, during or after an election”—
“the referendum” is substituted for “an election”—
“engaged or employed for payment or promise of payment as a canvasser for the purpose of promoting or procuring a candidate’s election”;
we are talking about the referendum in this case. However, some people who are campaigning will be paid—I presume this applies in the yes campaign, and perhaps even in the no campaign—to carry out precisely that function. In the 1983 Act this comes under the heading of “Prohibition of paid canvassers”, but what is a canvasser in terms of interpretation of the law? Someone seems to have gone through the 1983 Act, lifted all the sections, deleted the words “election to Parliament” or whatever, inserted “referendum” and perhaps not thought through in great detail where that section is relevant to the campaign on the referendum that is to take place in May this year. That is all I have to say at this stage in the debate.
Lord Maxton
My Lords, following the comments of my noble friend Lord Campbell-Savours, I wish to refer to postal voting. I know that my earlier intervention was not perhaps entirely helpful to him but the fact is that this matter raises another question. The referendum is a national referendum. Some voters will be registered at more than one address for work or other reasons. Many Members of this House are probably in that position. The register will entitle the person to vote in the local elections. If they have a postal vote for that local election, they will also presumably receive their paper for the referendum. However, they will also be entitled to vote on the referendum in Scotland or wherever their other home might be. However, if they receive the postal vote at one address, will that be marked on the national register to indicate that they are not entitled to vote on the referendum at their main residence? The Minister shakes his head as if to say that he does not know the answer. Now he is indicating that he does know the answer. That is fine. In that case I await his reply.
Lord Howarth of Newport
My Lords, my noble friend has raised two interesting points. The first concerns the prohibition against police officers canvassing. One can understand why, historically, this might be regarded as an appropriate provision. In some other countries—one might cite Egypt at present—democracy is highly imperfect and people may have real grounds for apprehension that the police might not be interested in improving democracy, so one can understand why there might be such a provision in electoral law. However, it seems to me that it must be a very long time indeed since that was a realistic apprehension in this country—at least I hope that that is the case. My noble friend makes a very good point that this must be a difficult provision—indeed, a discriminatory one—for members of police forces, who are entitled to vote as citizens and to talk about political issues with their friends and families. While conversation within the family might not be regarded as canvassing, there must be a rather imprecise definition of what this prohibition amounts to.
Baroness Golding
In my constituency we have a police officer who is now retired. He was advised not to join the Labour Party or to show any bias towards it while he was a policeman. That means canvassing.
Lord Howarth of Newport
One can understand that. It is a little difficult in legislation to draw the line between what people do in their public official capacity and what they may do in their personal capacity. It will be interesting to hear the Minister’s thoughts on whether this legislation is well framed to meet the circumstances of today.
My noble friend also drew attention to the prohibition against paid canvassers. I must confess that even after decades of political activity, I was unaware of this prohibition. It seems to me that it is quite commonplace, in all political parties, for people who are paid employees—paid functionaries—of the political parties to engage very actively indeed in canvassing and in the organisation of canvassing. Again, it would be helpful to hear from the Minister whether he has any concern that this prohibition, which has been long established in election law—at least since 1983—is in fact regularly and routinely ignored and whether it is sensible simply to re-enact it for the purposes of the referendum by transferring it from the 1983 legislation.
Lord Campbell-Savours
Perhaps it would be helpful if the Minister could assure us that when the law in this whole area is being further revised, the 1983 Act and its provisions might well be subject to reconsideration. We are not tying him down, but there are sections of that law which now look a little dated and it might be worth considering them more widely.
Lord Howarth of Newport
My noble friend Lord Campbell-Savours has done the Committee a good service by drawing our attention to the possibility that what we have seen is a cut-and-paste job. We have seen the transference of slabs of the 1983 legislation into this 2011 legislation. It would be helpful to know just how much thought has gone into this and whether the Minister thinks there is any case for reviewing these schedules before the Bill comes back on Report to make sure that he and his officials are entirely happy that in all aspects they make good practical sense.
Lord Grocott
I hope that this does not sound flippant, but an anomalous situation could arise, given what my noble friend Lord Campbell-Savours says about off-duty policemen being in any way involved in any kind of electoral activity, when we are shortly to receive a Bill from the other end of the Corridor providing for elected police commissioners. It would be rather odd, would it not, if one level of the police force was expressly required to involve itself in elections and all the activities associated with them, but not the bobby on the beat?
Lord Howarth of Newport
My noble friend has a great talent for a kind of lateral thinking that is always fruitful in our debates. His point is a little wide of the amendment; I must reprove him to that extent. However, it would be rather curious if we were to be presented with legislation that proposed that in elections for police commissioners, police officers should not be entitled to play a part or exercise any persuasive powers.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
I thank noble Lords who have taken part in this debate and highlighted some interesting aspects. I suspect that parts of the 1983 legislation have not been visited for some time. To take the general point, I am not aware of any moves afoot to review electoral law in this way, but I am sure that those in the responsible department will take note of what is said with regard to the generality.
The noble Lord, Lord Howarth of Newport, referred to this disparagingly as a cut-and-paste job. The schedule seeks to ensure that as far as practically possible, the existing rules governing the registration for and the conduct of parliamentary elections should apply in the case of the referendum. As is very obvious, in order to take account of this, there have had to be changes in terminology. For example, it would not make sense to have references to candidates when there are no candidates in a referendum. To do that, people had to go right through.
I was asked whether this section of the 1983 Act would be considered for revision in future. We will want to look at that, but it is right that we base the referendum on the rules that we know. If I had come to the House with subtle changes, I would have had a difficult job trying to explain them, and no doubt some noble Lords would have thought that a great conspiracy was afoot. In future, we will be happy to review the provisions, but I cannot honestly say that it will be done quickly—certainly not in time for Report. However, I do not think that that was what was asked: I think that the request was to look at this more generally.
I will respond to specific points. I do not have the information about whether there have been any convictions under Section 61 of the Representation of the People Act. That is a matter for the courts and I am advised that the information is not collected centrally. The provision with regard to voting on one’s own behalf or by proxy, to which the noble Lord, Lord Campbell-Savours, drew attention, is intended to cover the situation where one can vote on one’s own behalf and also by proxy on someone else’s behalf, but one cannot vote twice on one’s own behalf.
That brings us to the question of postal votes. There is a danger of Members of the Committee getting into their anecdotage. The noble Lord, Lord Maxton, asked whether, if you have a postal vote in one place but are registered in another, as Members of Parliament have been, you could vote in another place even if the postal vote had been issued. I know the answer because in the 1989 European elections I had a postal vote in the Highlands and Islands constituency, for which I was a Member of Parliament, and I was living in London. Local elections were on the same day and it took me a long time to persuade the polling clerk not to issue me with a ballot paper for the European elections because I had already voted and it would have been an offence to vote again—whereas I did want to vote in the local elections. I do not know how I knew about it, but I did. Perhaps it is important, as the noble Lord, Lord Campbell-Savours, pointed out, that the information should be in the material that will go out to those who receive a postal vote that they may not vote more than once.
Lord Maxton
In that case, is the Minister saying that it will be the responsibility of the person who is registered to make sure that they do not receive a postal vote for the referendum, rather than it being noted on some form of national register?
Lord Wallace of Tankerness
The thing to say is do not use it, or, if you have used it, do not take the second vote. The important thing is that nobody votes more than once.
Lord Campbell-Savours
My noble friend Lady Golding intervened to correct me. However, it still leaves a question in my mind. If the application for the postal vote has been made immediately prior to the election, how can we be sure that the officers in the polling booth have before them an electoral register that has been updated to include the mark that my noble friend Lady Golding referred to? I do not expect the Minister to reply on that point now, but he might wish to check and let us know the position on Report or in writing.
Lord Wallace of Tankerness
I will certainly check and advise the noble Lord, and other noble Lords who have contributed to the debate.
Lord Rennard
Perhaps the Minister would agree with me that the reason why we have a cut-off for applying for a postal vote before an election is to create that gap, so that the list provided to polling station presiding officers on the day is up to date and shows who has been given a postal vote. Thus a ballot paper for a non-postal vote cannot be issued on polling day to someone who has already been issued with a postal vote.
Many issues have been raised by noble Lords in this short debate. With the exception of the contributions of the noble Baroness, Lady Golding, the prejudice of people who over many years have organised elections as election agents has been confirmed. Those who have stood as candidates in elections understand very little about the laws that govern the elections. Those of us who have got on with the business of organising elections understand that none of the issues raised in the debate has caused any problems in the 28 years since the 1983 legislation—or indeed in the decades before that—and that it would be most unwise in this debate suddenly to start revising our election laws so that we would have different election laws for the conduct of the referendum from those that we will have for the elections that will also take place on 5 May this year.
Lord Wallace of Tankerness
As one who stood for election on I do not know how many occasions, I shall not tangle with one of the best agents that my party has ever known.
Baroness Golding
I realise that the noble and learned Lord does not wish to tackle one of the best agents, but there is an emergency postal vote if you are taken into hospital. I say as an agent that one of the best agents seems to have forgotten that.
Lord Wallace of Tankerness
If a person who has been taken into hospital requires an emergency postal vote, it is highly unlikely that they will turn up at the polling station because, by definition, they are in hospital.
The general point is made. There is a responsibility on the citizen not to vote twice in the same election. I should have thought that that was a well known rule. The other point which seems to be agreed across the Committee is that it is important in this referendum that we use the rules that have been in place for 28 years. The time may be coming for them to be reviewed, but that will not happen before the referendum. We are safer, in terms of running a smooth referendum campaign, using rules that are tried and tested.
“( ) Regulation 11 of the Local Authorities (Conduct of Referendums) (England) Regulations 2007 has effect as if the reference to regulation 10(1) or (7) included a reference to section 4.”
Lord Wallace of Tankerness
My Lords, Clause 4 makes it clear that the local government referendums in England can be combined with the referendum on the voting system. The amendment is required to make clear which set of rules applies to govern the conduct of the poll, should such a local referendum be combined with the referendum on the voting system in voting areas where no other relevant local election is taking place. Although we have yet to receive confirmation of where, if any, local government referendums will be held on 5 May, this minor amendment is important to clarify which set of rules would, in that eventuality, apply to govern a combination of such a poll with the referendum on the voting system. I beg to move.
“( ) Regulation 116(1) of the Representation of the People (England and Wales) Regulations 2001 (S.I. 2001/341) has effect in relation to a relevant election as if the reference to documents forwarded under rule 55(1)(e) of the elections rules were to documents forwarded under rule 50(1)(a) of the referendum rules as applied by this paragraph.”
Lord Wallace of Tankerness
I shall speak also to the other amendments in this group, all of which are related. Indeed, they relate to each of the combination schedules and have been grouped to ensure that there are equivalent combination provisions across the whole of the United Kingdom.
The overall purpose is to ensure the smooth running of the provisions in Schedules 5 to 8, which relate to the provision of, access to and retention of documents at a combined poll. The amendments are technical and will make certain that the right documents are available to the right officers at the right time, and are retained by the right officers after the polls are over.
I do not intend to go into this matter in great detail, unless pressed, but noble Lords may be interested to note that the amendments provide that at the end of a combined poll there is the same obligation on the registration officer or counting officer to provide access to and supply copies of combined election documents that would have existed if the election had been taken alone. In England, Wales and Scotland, the counting officer will be provided with the necessary lists and other election documentation and information needed to carry out his or her functions in relation to the combined elections that are transferred to him or her. For example, we have specifically provided that as soon as practicable after 5 pm on the sixth day before the poll—that is, after the date for applying for a proxy vote has passed—the registration officer must provide the counting officer with the absent voting lists for any elections which are combined with the referendum in his or her voting area.
An equivalent provision is not needed for Northern Ireland because of the chief electoral officer’s role as both a returning officer for the election and counting officer for the referendum. Other provisions specifically relate to documentation in Northern Ireland, including a court order for the production of a combined corresponding number list retained by the chief electoral officer for Northern Ireland, which can be obtained where necessary in relation to a local election offence or petition, in the same way that such an order could have been obtained if the document had been retained by an officer of the relevant council.
I should also advise the Committee that the Electoral Commission, the Association of Electoral Administrators, the Northern Ireland Office, the Scotland Office and the Wales Office have confirmed that they are content with these amendments. I beg to move.
Lord Bach
My Lords, I thank the Minister for introducing his amendments. I have a simple question. Why are they being added now when I think a number of amendments were added at the latter stage in the Commons proceedings on the Bill? Was this something that was omitted or has it just been thought up? I am talking about Amendments 122F, 122H and 122K, which all refer to the same thing. I can see its importance and we do not oppose it, but why does it appear now when everything else in Schedule 5 was there at the time of the proceedings in another place?
If the noble and learned Lord does not have the answer by the time I sit down, he can write to me. This seems quite important so I am interested to know why it was not added before.
Lord Howarth of Newport
Let me provide a little more time for officials to advise the noble and learned Lord. I should be grateful if he would advise the House on the means of communication whereby these minor, technical but none the less significant changes will be communicated to those whose duty it is to carry out the relevant functions. How much complexity is there in that and will training be needed? How will the system ensure that all those who need to know about these changes being made at a late stage actually know, given the short-ish interval between enactment and the date of the referendum?
Lord Wallace of Tankerness
My Lords, I understand that through scrutiny of the legislation it was noticed that these points needed to be added to the Bill. In answer to the noble Lord, Lord Howarth of Newport, the schedules are combination schedules. He referred to training. What was going to happen would happen anyway. For the sake of argument, if it was an election to the Welsh National Assembly, now that there is a combined election it would bite on both ballots. In that regard the chief counting officer is responsible for the referendum and there is communication there. My information is that these points have already been communicated to administrators who have commented on the provision. As I said when I moved the amendment, the Electoral Commission and the Association of Electoral Administrators have already confirmed that they are content with the amendments. In other words, it is very much into the system already and I am confident that they will be well communicated.
“Provision of registers etc to counting officerRegistersRegulation 98 of the Representation of the People (England and Wales) Regulations 2001 as modified by Part 3 of Schedule 4 above applies for the purposes of a relevant election as it applies for the purposes of the referendum.
Absent voters listsAs soon as practicable after 5 pm on the 6th day before the date of the poll, the registration officer must provide the counting officer with the following lists, and any subsequent revised lists or revisions to the lists—
(a) the list of proxies for each relevant election;(b) the postal voters list for each relevant election;(c) the proxy postal voters list for each relevant election.Personal identifier informationWhere proceedings on the issue and receipt of postal ballot papers are taken together by virtue of regulation 65 of the Representation of the People (England and Wales) Regulations 2001, paragraph 7C of Schedule 4 to the Representation of the People Act 2000 has effect as if a reference to a returning officer were a reference to the counting officer.”
Lord Campbell-Savours
I wonder whether the noble and learned Lord can answer a few questions on Schedule 5, which refers to combined polls and states:
“The cost of taking the combined polls (excluding any cost solely attributable to the referendum or to a particular relevant election), and any cost attributable to their combination, is to be apportioned equally among them”.
I presume that means among the authorities concerned, but perhaps the noble and learned Lord can tell us exactly what it means in these circumstances. If it is a question of apportionment and different sources of money are to pick up bills, I presume that there is an apportionment procedure. Can he explain what that procedure is and could it lead to dispute? If local authorities are contributing to the pot, disputes may well be possible. The 1983 Act may well make provision for that, but I have not been able to find specific reference to apportionment in this context.
In Schedule 5, on page 141, there is reference to ballot boxes under paragraph 18, which states:
“If the counting officer thinks fit, the same ballot box may be used at the polls for the referendum and the relevant elections”.
In other words, we will have a combined ballot box in certain polling stations receiving both referendum votes and other votes. There may well be circumstances in the local authority where some might argue, for whatever reason, that they want that because of its implications for the arrangements in the counting stations.
One would have thought that it is better to have two boxes separated in advance as against placing the responsibility on the counters in the counting stations to divide the ballot papers themselves. Are the Government prepared to issue guidance on whether they would prefer that a particular approach was adopted, as against giving the counting officer responsibility in his or her discretion to decide whether he or she feels that there should be a single box or two boxes to collect the votes?
Finally, on the same page, the title of paragraph 21 states:
“Guidance to be exhibited inside and outside polling stations”.
I raised that issue during our debates last night. The question remains unanswered. Paragraph 21 states:
“A notice in the form set out in Form 5 in Part 3 of this schedule, giving directions for the guidance of voters in voting, must be printed in conspicuous characters and exhibited inside and outside every polling station”.
What I was on about last night, and I repeat my concerns today, is what happens if those who are rather keen on securing a particular result decide to drive a huge 40-footer artic truck with big signs saying, “Vote yes for AV”, or otherwise, and park it right outside the polling station door? In general election campaigns, people plaster candidates’ names on huge hoardings of that nature which are mobile, but I wondered whether on this occasion, because of the highly controversial nature of the question being asked in the referendum, there might be those who decided to conduct their campaign by using those mobile hoardings. Is there not a need to issue some guidance to polling clerks? Clearly, they would have to be subject to the law as to what they should do in such circumstances.
Lord McAvoy
My Lords, I return briefly to an area that I mentioned last night on which I did not get a response from the noble Lord, Lord Strathclyde. I accept that I raised what was probably a unique set of circumstances and I would not expect the Minister to have an answer at his fingertips. I could go through the detail again, but in the spirit of the understanding that we have, I will say only that it is about the definition of the area of control under the authority of the presiding officer. At page 137, the Bill states:
“A relevant officer is … in the case of proceedings at a polling station, the presiding officer”.
My point is similar but not identical to that made by my noble friend Lord Campbell-Savours about the definition of the area of control if activity is taking place, such as voters being approached as they head towards the polling station. At one of the polling stations with which I was involved, the presiding officer and the police had genuine uncertainty and doubt about getting involved in that. If there is activity like that, which is not desirable, although I am not sure about whether it is illegal, or if a complaint is made, does the presiding officer have any authority over it?
Lord Tyler
My Lords, when my noble friend responds on this debate, can he reassure us that past experience of the combination of referendums—or referenda, depending on your Latin—and local or other elections has been fully taken into account? As has already been mentioned this afternoon in Committee, there was experience in London in 1998 when a very extensive change to the governance of London was set out in a proposal put to a referendum which was combined with the local elections taking place at the same time. Therefore, when looking at Schedule 5, it is extremely important that we do not try to reinvent the wheel but take full experience of what has gone before.
My noble and learned friend has much more direct experience of what happened in Scotland, but I ask him not to be diverted by the red herring of what happened in the Scottish parliamentary elections when, as we all know, the confusion was caused by misleading instructions on the ballot paper for one particular election, not by a combination of elections. Indeed, remarkably few ballot papers for the local government elections were disallowed because, even though it was a new system, it was remarkably well described on the ballot paper. I hope we can be given reassurance that we are not going to start reinventing more wheels this afternoon. The important thing to do is to make sure that Schedule 5 has fully taken into account past experience and, if I may say so, the sort of practical experience of my noble friend Lord Rennard rather than that of those of us who have simply stood.
Baroness Golding
On ballot boxes, in my area, there will be a full parish council election, a local government election and this referendum. In previous elections, some areas have not had elections, and we have borrowed ballot boxes from those not involved. There could be a shortage of ballot boxes of whatever kind. Has this been looked at because everywhere will have a ballot?
Lord Foulkes of Cumnock
I come back to a point that I raised on a previous amendment in relation to the fact that there are two different franchises in the election and the referendum. The Scottish parliamentary election is on the local government franchise and the referendum is on the UK parliamentary franchise, plus Peers. The Minister is right that we are the only ones having that special treatment. The schedule makes provision for either a combined register or two separate registers. Can the Minister explain how that will work, how the registers will be combined, and what the procedure will be?
As I understand it, if there are two separate registers, one for the Scottish parliamentary election, which includes European nationals, and one for the referendum, which does not include European nationals, it will be quite a cumbersome operation. When people come in, there will be three categories: people entitled to vote in the referendum and the Scottish parliamentary election; people entitled to vote in the referendum only; and people entitled to vote in the Scottish parliamentary election only. It will be much more confusing. The noble Lord, Lord Tyler, raised the confusion in the Scottish local elections in 2007. I think it will be even more confusing than that because of the two franchises.
There is also the question of overseas voters. They will be entitled to a vote in the referendum, and it would be useful to know what arrangements are going to be made for them to be given the votes that they are entitled to, to be made aware of their entitlement and to get postal votes. Even in relation to postal votes, there will be three categories to be dealt with: those entitled to both, those entitled to the referendum and those entitled to the Scottish parliamentary election.
Keeping the registers, marking them, marking ballot papers and handing them out will be a very complicated exercise. With respect, I think the Government have underestimated some of the difficulties that they are creating for counting officers and returning officers by having the referendum on the same day. Since I raised this matter some weeks ago—I think the noble Lord, Lord McNally, was dealing with it on that occasion—I hope that the noble and learned Lord, Lord Wallace of Tankerness, will now be able to explain how these processes are going to be carried out, particularly the ones at the polling station.
Lord Grocott
My Lords, it often happens that you can see something in a schedule that raises quite an important more general point. I am referring to the cost of the combined polls, which is on page 137 in Schedule 5. It says quite simply, and I am sure that voters would regard this as common sense, that when two or three elections are taking place in the same area at the same time you divvy up the cost of delivering that election between them. I ask myself whether that is the building block that has resulted in the calculation that the Government have made, a very important calculation, about the cost of the referendum and, more importantly, the saving to national funds from holding the referendum, with all the difficulties that entails, which we acknowledge to be not insurmountable, on the same day as a number of elections in a number of different places.
Unfortunately, I have not brought my precise note, but I am sure that the noble and learned Lord, Lord Wallace, has these details engraved on his mind. The Government and the Deputy Prime Minister have repeatedly told us a precise figure—from memory I think that it is £35 million but I stand to be corrected—which will be saved by holding the referendum on the same day as a number of local elections. I have always thought that using the word “saved” there makes about as much sense as saying that you buy a fridge for £150 in a sale, as opposed to paying £200, and that therefore you have saved money. You would save a lot more if you did not buy the fridge and we would certainly save a lot more if we did not hold a referendum. Sadly, that argument has now passed.
Clause 7 sets out the complexity of the way in which the referendum will be counted and the voting areas. I will not list them all, but they range from,
“a district in England … a county in England in which there are no districts with councils … a London borough … the City of London”,
et cetera. I want to ask a straight, factual question. How have the Government calculated what the saving will be to the Exchequer from holding the referendum on the same day as these other elections? As to the “cost of combined polls” under Schedule 5, page 137, the Government have obviously attributed to the referendum the whole cost of those areas where there are no local elections, which I suppose is intelligible enough, and I assume that they have divvied up—I may be making huge assumptions here—the proportionate cost of the referendum in those districts where other elections are taking place.
Most of all, I have always been wary about the glib statistic of how much is being saved by holding the referendum on the same day. If that is the building block of this calculation, which presumably somewhere along the line it must be—that is, the cost of combined polls—I would ask the noble and learned Lord, Lord Wallace, to give us a note on whether the calculation is built on these individual bricks. I rather fear that it might be a construction built on sand. But at least I should like to know the calculations that have led to this alleged saving.
Lord McAvoy
My Lords, once again, interventions made by the noble Lord, Lord Tyler, seek only to extend the time being spent on this Bill. Time after time, the noble Lord questions the integrity of the scrutiny that we are having here. In the brief time in which I have been in the Chamber, this scrutiny is well within the spirit of the understanding that I believe we have. The questioning of integrity does not help matters. I would ask the noble and learned Lord to bear in mind that, as far as I am aware, the noble Lord, Lord Tyler, does not have a clue because he was not present during the Scottish elections of 2007. Any comments he has about that should be discounted.
Lord Wallace of Tankerness
I wondered when it was going to stop. In dealing with these schedules, it is important that these questions are asked. Perhaps I may start with the question raised about the schedule by the noble Lord, Lord Campbell-Savours, which was picked up by the noble Lord, Lord Grocott, with regard to the combination of the polls. As was articulated by the noble Lord, Lord Campbell-Savours, rule 5 provides for the cost of the combined polls to be equally apportioned between them. For example, in the case of a combined referendum on the voting system and the local government elections in England, the costs would be split 50:50 between the Consolidated Fund and the local authority concerned, except for those items that can be expressly and readily identified as being attributable to either one or the other.
As regards the costs that we are comparing, if you took the local elections—for the sake of argument, the Scottish Parliament election or the Welsh National Assembly election—on their own and added all the costs of a separate election with regard to the referendum, it is that compared with what the cost would be of combining the polls. I am advised that in calculating the cost, the assumptions take into account all the additional costs arising from the combination of polls. Overall, it would lead to a saving because, obviously, if the costs are split between the Consolidated Fund and the local authority concerned, there will some saving too for the local authority. I am advised that there is information in the Library of the House which sets out further detail on the costs.
Lord Maxton
Given the assurance that the Minister gave last night that in the Scottish situation the parliamentary vote would come first, can he therefore say that in terms of ballot boxes there will always be two in Scotland—one for the Scottish Parliament elections and one for the referendum? If there is not, there are some areas—particularly, oddly enough, in some of the more remote areas which the noble and learned Lord will know—where the transportation of boxes to the count is done by boat. This could cause problems if there were delays or whatever and the counting could not be started on one before the other was sorted out.
Lord Wallace of Tankerness
I do not quite follow that because if there is a delay because of weather or transport, it will affect both elections. I can recall times past when local elections in Scotland and Scottish parliamentary elections were on the same day. Even when there were separate ballot boxes, it was still necessary to check them both to ensure that a ballot paper had not inadvertently been put in the wrong box. I think that different colours of ballot papers are used so that they are readily identifiable. I would imagine—it would seem to be common sense—that, even where two ballot boxes are used, it would still be important to make sure that ballot papers had not been put in the wrong box. It is important that every vote is counted.
Lord Campbell-Savours
Does the Minister accept that it is bound to cost more money if there is one box which has to be separated in the counting station? Is there not a responsibility on the Government to try to save money?
Lord Wallace of Tankerness
My Lords, I do not necessarily think that it is bound to cost more money. But overall it is clear that there are savings to be made. As I have indicated, a note has been provided on this. If there is a relatively small electorate at a polling station, it does not necessarily make sense to have two ballot boxes. With regard to the question about whether there would be enough ballot boxes, the Electoral Commission is asking all counting officers to ensure that they have sufficient equipment to run the poll effectively, which obviously includes ensuring that a sufficient number of ballot boxes are provided to all polling stations in the United Kingdom.
Baroness Liddell of Coatdyke
I have a question for the noble and learned Lord which I was going to ask in relation to Schedule 7, but in the interests of trying to keep things moving along rapidly, I shall do so now. Will he address the issue raised by the Electoral Commission about the difficulty of a declaration in relation to the results of the Scottish parliamentary election? The Bill states quite clearly that there may be no declaration in the parliamentary count or any count until the verified ballot papers have been notified. If the count for the parliamentary election is done before the count for the referendum, will we not end up with a fairly enormous muddle where it will take some hours before there is any declaration on the parliamentary count? Will the noble and learned Lord undertake to take a look at this and perhaps respond on Report? Unnecessary complexity seems to have been built in.
Lord Wallace of Tankerness
I certainly undertake to come back and give some clarification to the noble Baroness and many others who are interested in this matter. I confirm what I said yesterday to the noble Lord, Lord Maxton—that it is intended that the result of the Scottish election should be declared ahead of that of the referendum. As I also indicated, it took some time to put together a Government in Scotland on the previous three occasions. Nevertheless, it is intended that that election should be the priority.
The combined rules in the Bill require all ballot papers to be separated for each of the three polls before the verification process can commence. Even if there are two polls, it still has to be verified that ballot papers have not been put in the wrong box. There are also provisions which require all ballot papers for each of the three polls to be verified before any of the counts can conclude. This ensures that all ballot papers will be accounted for and included in the appropriate count. If people cast their vote, it is important that it is then counted.
Lord Howarth of Newport
In that connection, I would be most grateful if the noble and learned Lord would deal with one other point: the position of the Government—on which we disagree with them—that the results of the referendum should not be declared constituency by constituency. What aspects of the arrangements for the count set out in the schedule are designed to ensure that it will not be possible for party agents and others who are present at the count, for very valid reasons, to make a pretty shrewd assessment of the sizes of the piles of ballot papers and to estimate the result constituency by constituency? What safeguards are built in to prevent that?
Lord Wallace of Tankerness
My Lords, I never cease to be amazed at the ingenuity of observers at counts in trying to work out what is going on. Even in European elections in the past where ballot papers have been verified on the Thursday night with the count deferred until the Sunday—and, in the case of the Highlands and Islands, the Monday—some people have still managed to have a pretty shrewd idea of the results. It might be asking the impossible, no matter what was put into statute.
A number of important questions have been asked. The noble Lord, Lord Foulkes, asked about the separate registers. There will be two registers, but an accounting officer, who has most experience of local circumstances, can decide to merge them. If, for example, he or she is aware that in a particular area some voters would be on one register but not on the other, they may choose to have one register. Each elector is marked to show which election he or she can vote in.
The noble Lord, Lord McAvoy, asked about the definition of the area of control of a presiding officer. The area of control is not covered by the Bill. The Electoral Commission feels that that would be better dealt with in guidance, as with all previous elections. That goes also for mobile hoardings. I am sure that those of us who have fought elections or been agents in them will recall that opposing parties or campaigns are not usually slow to object or make representations if they feel that some trickery is up whereby messages are being obscured by the other side. The Bill says “inside and outside” polling stations. I do not think that a 40-tonne truck will be able necessarily to obscure a notice inside a polling station.
Lord Maxton
As someone who, like the noble and learned Lord, has been involved in elections, I know that there is sometimes great variety even within the same constituency and even from one school to another. If I am a candidate and walk in with my rosette on my lapel, I am told to take it off in one school but not in the next. Are there any guidelines to be given on that?
Lord Wallace of Tankerness
My Lords, it is a matter of local discretion. Elections have worked well in these respects. When I fought the European election in 1979 in the south of Scotland, I was forbidden to wear my rosette in the Galloway part of the constituency but reprimanded for not having one when I went without it into the Roxburgh, Selkirk and Peebles parts—they thought that it had been a pretty colourless election up until then and wanted to see a bit of colour.
“( ) Regulation 121 of the Representation of the People (England and Wales) Regulations 2001 (S.I. 2001/341) has effect in relation to an Assembly election—
(a) as if, in the definition of “relevant Assembly election documents”, the reference to rule 69(1) of Schedule 5 to the 2007 Order included a reference to rule 52 of the referendum rules as applied by this paragraph;(b) as if, in paragraph (2), the reference to documents forwarded under rule 67(1)(h) of Schedule 5 to the 2007 Order were to documents forwarded under rule 50(1)(a) of the referendum rules as so applied.”
“Provision of registers etc to counting officerRegistersRegulation 98(8) of the Representation of the People (England and Wales) Regulations 2001 has effect as if a reference to a returning officer included a reference to the counting officer.
Absent voters listsAs soon as practicable after 5 pm on the 6th day before the date of the poll, the registration officer must provide the counting officer with the following lists, and any subsequent revised lists or revisions to the lists—
(a) the list of proxies for the Assembly elections;(b) the postal voters list for the Assembly elections;(c) the proxy postal voters list for the Assembly elections.Personal identifier informationWhere proceedings on the issue and receipt of postal ballot papers are taken together by virtue of paragraph 2 of Schedule 3 to the Welsh Assembly Order, Article 13(5) of that Order has effect as if a reference to a constituency returning officer were a reference to the counting officer.”
“Schedule 8 to the 2010 Order has effect—
(a) as if the reference in paragraph 1 to documents retained under rule 71 of the Scottish Parliamentary Election Rules were to documents retained under rule 50(1)(b) of the referendum rules as applied by paragraph 52 above;(b) as if the reference to that Schedule in paragraph 4(2) were to any enactment;(c) as if references to the CRO included references to the counting officer.”
“Provision of registers etc to counting officerRegistersParagraph 1 of Schedule 1 to the 2010 Order has effect as if a reference to a returning officer included a reference to the counting officer.
Absent voters listsAs soon as practicable after 5 pm on the 6th day before the date of the poll, the registration officer must provide the counting officer with the following lists, and any subsequent revised lists or revisions to the lists—
(a) the list of proxies for the Scottish parliamentary election;(b) the postal voters list for the Scottish parliamentary election;(c) the proxy postal voters list for the Scottish parliamentary election.Personal identifier informationWhere proceedings on the issue and receipt of postal ballot papers are taken together by virtue of paragraph 2 of Schedule 4 to the 2010 Order, paragraph 23(1) of Schedule 3 to the 2010 Order has effect as if a reference to a CRO were a reference to the counting officer.”
“( ) Where appropriate—
(a) a reference in any enactment to a list mentioned in sub-paragraphs (i) to (iii) of sub-paragraph (2)(a) is to be read as a reference to the combined postal voters list;(b) a reference in any enactment to a list mentioned in sub-paragraphs (i) to (iii) of sub-paragraph (2)(b) is to be read as a reference to the combined proxy postal voters list.”
“(1) Where—
(a) a combined list is prepared as mentioned in paragraph 7(2), 8(2), 16(1) or 22(1),(b) the same copy of the register of electors is used as mentioned in paragraph 21(1),(c) a single list is used as mentioned in paragraph 24(1), 26(1), 27(1) or 28(1), or(d) a declaration made by the companion of a voter with disabilities (within the meaning of paragraph 25) relates to the referendum or Assembly election as well as a local election,rules 50(1)(b) and 52 of the referendum rules apply to those documents (and rule 58(1) of the Local Elections Rules has effect as if any reference to those documents were omitted).(2) Where a combined list is prepared as mentioned in paragraph 7(2), 8(2) or 16(1), rule 59 of the Local Elections Rules, so far as it relates to corresponding number lists, has effect as if references to the proper officer of the council were to the Chief Electoral Officer.”
“Schedule 3 to the Local Elections (Northern Ireland) Order 2010 has effect—
(a) as if, in the definition of “the marked register or lists” in paragraph 1(1), the reference to documents retained under rule 60 of the Local Elections Rules included a reference to documents retained under rule 50(1)(b) of the referendum rules as applied by paragraph 38 above;(b) as if references to the proper officer included references to the Chief Electoral Officer.”
“(i) the packets, made up under paragraph 11 of Part 3 of Schedule 2 to the Local Elections Order, of any combined lists produced by virtue of paragraph 7 or 23 above;(ii) the packets made up under paragraphs 12 and 17C of that Part.”
“( ) Regulation 115(1) of the 2008 Regulations has effect in relation to an Assembly election as if the reference to documents retained under rule 57(1A) of the elections rules included a reference to documents retained under this paragraph that relate to the Assembly election.
( ) Schedule 3 to the Local Elections (Northern Ireland) Order 2010 has effect—
(a) as if, in the definition of “the marked register or lists” in paragraph 1(1), the reference to documents retained under rule 60 of the Local Elections Rules included a reference to documents retained under this paragraph that relate to the local election;(b) as if references to the proper officer included references to the Chief Electoral Officer.”
Lord Strathclyde
Lord Strathclyde
My Lords, this is a new but small point. The amendment seeks to ensure that instruction 9 of form 2—
“Form of Declaration of Identity (to be used where proceedings on issue and receipt of postal ballot papers combined)”—
in Part 3 of Schedule 8 requires voters to return all the postal ballot papers in their pack in the event that any ballot paper is spoilt and a replacement is required. The voter will then be issued with a complete new set provided that the originals are returned by 5 pm on the day before the day of the poll. I beg to move.
Lord Bach
I congratulate the noble Lord or his official on having spotted that the word “spoilt” should not be included. It is not used in reference to England, Scotland and Wales; it crept in for Northern Ireland but it has been taken out again. We do not oppose the amendment.
““Equality of votesIf there is equality of votes at any stage of the counting process, the count shall be abandoned and the poll re-run within one month between the two candidates with most first preferences.””
Lord Bach
My Lords, I shall speak also to Amendment 124 and Schedule 10 stand part on behalf of my noble friend Lord Rooker.
Amendment 123 relates to rule 7 of Schedule 10 on page 295. The heading to the schedule concerns the rules on how alternative vote elections will take place, if we should ever come to that.
Those of us who have been lucky enough to attend local government election results nights will know that there is nothing as exciting as a tied vote. They will remember for the rest of their lives the thrill of someone winning by random as opposed to the will of the electorate—particularly the winner; the loser perhaps not so much. The question my noble friend poses in the amendment is whether that thrill is justified—in other words, whether it is justifiable and inevitable for such decisions to be made by lot or by the toss of a coin—or whether there is a better way of doing it. That is what the amendment is about.
My noble friend’s view—it may be the view of other noble Lords—is that we should not decide elections by lot in any circumstances; that the voters should decide. Under the alternative vote system—if, as I say, it comes into force—the possibilities of a tied vote are extensive at each round of counting in a highly marginal seat. Even in a safe seat it is possible—although not as likely—for, say, candidates five and six to tie. My noble friend is against tossing a coin and he offers a simple solution, as his amendment makes clear. His solution is that if there is a tie at any stage in the proceedings under the alternative vote system, there should be a run-off between the two top candidates within a period of one month.
Lord Rennard
Why does the noble Lord think that this should apply at any point in the counting process? I have demanded recounts and seen how results have gone one way and then the other; as an election agent, in the past I have settled for a result when exactly the same result has been produced twice. Those with experience of recounts may wonder why it would be logical to abandon the count and have a re-run if the count at one point produces a dead heat but then, when you have checked more carefully and have found a few more ballot papers for one candidate, the result has gone another way. There may later be another count and again a clear result with a majority for one candidate. Surely it does not make sense to say that you should have a rerun at any stage if there is an equality of votes. There may be a case for a re-run if there is a dead heat after several recounts, but surely not at any stage in the counting process. That is simply not logical.
Lord Bach
I take on board what the noble Lord has said. He is right—there should be recounts for those who finish equal sixth, for example, to ascertain who finished sixth and who finished seventh. Of course that should take place. However, if at the end of it there is an equality of votes between the top two candidates, the amendment suggests that there should be a run off within a month. If there is a tie at any stage between the top two candidates—not the fifth and the sixth but those with the most votes—there should then be a run off. Of course, there would be recounts galore to ensure that the numbers are equal, but that sometimes happens.
Lord Tyler
I do not think that is what the amendment says. It states:
“If there is equality of votes at any stage of the counting process”.
There is no reference to recounts.
I have some sympathy with what the noble Lord, Lord Bach, is saying. On one occasion I stood for the county council and, after all the recounts, there was a dead heat and we tossed a coin. I luckily lost and did not have to serve on the county council—I ended up in the other place instead.
In such circumstances, surely you go through the whole process before you reach this stage. The noble Lord, Lord Rooker—very uncharacteristically—has produced a defective amendment.
Lord Bach
My Lords, that is very doubtful indeed. The expression “at any stage” could well apply to the position after there had been recounts. When you reach that stage the count should be abandoned, to use my noble friend’s words in the amendment.
I would never accuse the two noble Lords but there is a kind of nitpicking in relation to this amendment. It is certainly not my intention—unless they persuade me otherwise—eventually to ask for the opinion of the House on the amendment; I want to know what the Government feel about this issue. My noble friend is making a serious proposal. He does not like lots being used at any stage in a democratic election and many may feel that he has a point. He says let the voters decide, not the toss of a coin or the drawing of short and long sticks. It cannot be right for administrative convenience to take over from elections.
My noble friend’s second amendment also relates to alternative vote elections. Noble Lords who are still following me will see on page 297 rule 12(2)(b), which reads,
“the numbers on the left-hand side are omitted, together with the vertical rule separating them from the particulars of the candidates”.
In other words, under an alternative vote election, because it will be open to a voter to put “1”, “2”, “3” and so on on the right-hand side of the ballot paper, the number by each candidate that we are used to seeing on the left-hand side will go in alternative vote elections.
My noble friend is concerned about that, although he sees the sense of why that should be, because there may well be confusion if the numbers on the left-hand side link “1, 2, 3, 4, 5, 6” and the job of the poor voter is to put in “1, 2, 3, 4, 5, 6” on the right-hand side. There is a serious point here that we should not run away from. This is an issue because in a number of constituencies—maybe many around the country, not just inner-city ones but also ones in other areas—English is the second language for many people, and they currently vote by numbers. Supporters of all parties have been known—and there is nothing wrong with it at all—to stand outside the polling station, asking for support for a particular number on the ballot paper. In other words, the voters do not do English for names but can do numbers. This is not a patronising comment, it is what actually happens in the real world and it is the way votes are taken quite legitimately in some other foreign countries.
Supporters of a particular candidate can no longer use numbers because they will not be on the ballot paper under the alternative vote system. This amendment is strictly to probe the issue of names and numbers on ballot papers, were we to have an alternative vote system. My noble friend—I do so on his behalf—asks whether the Government have thought about this issue and whether this will make people a bit more reluctant to go to the polls or to vote if they realise that this change will be made and they will not be able to vote by numbers. I beg to move.
Lord Strathclyde
The noble Lord was kind to speak to these amendments on behalf of the noble Lord, Lord Rooker, who meant no discourtesy by not being here—he could not have possibly imagined that we would still be in Committee this week when he planned the rest of his diary. I agree with the noble Lord that this is a skilful and interesting amendment. It is also an imaginative amendment, but it raises points that need to be answered, which I shall try to do.
The purpose of the amendment is to insert new provisions into Schedule 10 to make provision where there is equality of votes at any stage in the counting process. The proposed approach differs significantly from that provided for in the Bill, which essentially proposes that a tie between candidates will be settled by reference to the number of votes secured by the relevant candidates in previous counting rounds, starting with the number of first preference votes obtained in the first counting round. If at that stage there is a tie, the next stage will be looked at and so on. If that process fails to decide the tie—that is, there is an equality of votes for the respective candidates at all previous counting stages—the tie will be decided by the drawing of lots. Under the Bill, there is no provision for the poll to be abandoned and a fresh election held in the event of a tie between candidates. The Government recognise that it is possible to take different approaches on this issue. However, in developing the AV provisions in the Bill, we have taken into account the legislation and practice in elections to bodies across the UK and in other countries where preferences are used.
There is a strong case for referring back to the first preference votes received by candidates and taking those into account in the first instance when deciding a tie, as the first preference votes represent voters’ first choice as to which candidate should be elected. The noble Lord wishes to avoid an election being decided by lot. Under the current rules for UK parliamentary elections—under the first-past-the-post system—in the event of a tie, the returning officer decides the winner by lot. In the AV provisions, we are continuing with that principle that a tied vote can be decided by lot.
As my noble friend ably pointed out, the amendment as drafted would result in a fresh election being held in the event of a tie between candidates at any stage of the counting process, regardless of which candidates were involved. We think it would be hard to justify abandoning a poll where, for example, 10 candidates are standing and there is a tie between, say, the ninth and 10th placed candidates in the first round of voting. I know the noble Lord said this was a probing amendment—I understand that—but that is a flaw in the argument.
Lord Bach
To a large extent the noble Lord, Lord Rooker, will be satisfied. The Committee will be grateful to the Leader of the House for his full reply to what I hope the Committee found interesting points about the running of elections.
Regarding the amendment on whether lots should be held, this side is delighted to hear that the losing of a lot by the noble Lord, Lord Tyler, some years ago made his political career.
On the second, more serious issue, the real point behind my noble friend’s amendment—I think he was not allowed to express it in these terms—was about the abolition of numbers on the left-hand side of the ballot paper. That must follow once there is an alternative vote system because, otherwise, there will be confusion as to what the voter has to do with those numbers. I do not think that the Leader of the House answered that fully. The issue will have to be considered by the Electoral Commission and other interested parties if alternative voting comes in.
For the moment, I beg leave to withdraw the amendment.
Lord Campbell-Savours
In the spirit of constructive co-operation which we on this side have been practising and advocating over the 17 days in Committee, for the benefit of the Committee I shall not speak further on this matter.