Electoral Registration and Administration Bill

Baroness Jay of Paddington Excerpts

Monday 14th January 2013 Lords Chamber

[Lord Pannick]

My Lords, this amendment is tabled in the name of the chairman of your Lordships’ Constitution Committee, the noble Baroness, Lady Jay of Paddington, and three members of that committee: the noble Lords, Lord Lexden and Lord Lang of Monkton, and myself. The amendment addresses a mischief that occurred at the previous general election and which may recur at future elections, however careful the preparations.

The mischief is that eligible voters who present themselves at the polling station before the close of the poll at 10 pm are unable to vote if the relevant officials do not issue them with the ballot paper to which they are entitled by 10 pm. At the previous general election in 2010, some 1,200 voters queuing at 27 polling stations in 16 different constituencies were adversely affected in this manner.

Your Lordships’ Constitution Committee considered the matter. We concluded that eligible voters who present themselves at the polling station before it closes at 10 pm should not be denied a vote because they are not given a ballot paper by 10 pm, perhaps because many other voters arrive at or around the same time, or perhaps because the administration of the polling station is less than efficient. The right to vote is precisely that—a fundamental right. It should not be defeated by circumstances outside the control of the voter. Indeed, when we are rightly concerned to do everything possible to encourage people to vote, we should not be putting obstacles in the way of eligible voters who do make the effort to attend at a polling station and who are then frustrated by their inability to cast a vote.

The Electoral Commission has expressed its strong support for this amendment for very similar reasons. The amendment commands, I think, widespread support across the House. The arguments which have so far been presented by the Government in answer to the amendment are, your Lordships may think, very weak indeed. First, it is said by the Government that the voter need not wait until just before 10 pm. He or she could or should vote earlier. However, for many people, voting early is not an option because of work or family commitments. In any event, close of poll is 10 pm. Voters should not be required to guess how far in advance of 10 pm they need to attend at the polling station in order to be sure of being allowed to vote.

The second argument presented by the Government is that such a change in the law would cause practical problems. That is very unconvincing. All that needs to happen is that at 10 pm the polling officer closes the door of the polling station, or if, unhappily, there is a queue outside, stands at the back of the queue to ensure that anyone arriving after 10 pm cannot join the queue. The Electoral Commission has pointed out that the Scottish Government introduced such a reform in 2011. At the Scottish council elections last year, the change in the law enabled voting by three people who arrived by 10 pm but would otherwise have been denied a ballot paper. There were no practical difficulties. The Electoral Commission issued sensible and practical guidance to presiding officers.

The third argument advanced in opposition to this change in the law is that it is unnecessary, as the lessons have been learnt from the experience of the 2010 general election. The answer is that, however good the preparation may be, there is always a risk of a queue building up which prevents one or more eligible voters from voting because they have not received a ballot paper by 10 pm. Issuing a ballot paper may take a minute or two and, if several people arrive in the period just before 10 pm, a queue can easily build up. The risk of a queue is all the greater if ballot papers are being handed out for local as well as general elections. The Electoral Commission has rightly said that,

“no degree of planning alone can entirely mitigate the potential risk of queues at the close of poll”.

The final argument which the Government advance is that not many voters will be adversely affected. However, even one eligible voter denied a vote in these circumstances is one too many. The Government cannot have it both ways. They cannot say both that very few voters will be affected and that the amendment will cause practical problems. This amendment is correct in principle, it is workable in practice and it is much needed. I beg to move.

[Baroness Jay of Paddington]

My Lords, as always, the noble Lord, Lord Pannick, has presented the amendment with enormous clarity and great conviction. As chair of the Constitution Committee, I can say that we have been working on this question for some time. We held a stand-alone inquiry on it in the autumn of 2011 and published our first report in January 2012. The most interesting thing about the difference between the report that we issued then and our subsequent scrutiny report on the Bill that is before your Lordships’ Committee this evening is that the Electoral Commission changed its mind between the two reports. That is significant. It looked at the evidence that we had taken and engaged in extensive correspondence and “offline” discussion with us and came back in October with the report from which the noble Lord, Lord Pannick, has quoted extensively. I think that it was convinced by the arguments that we made—I am sure that it was by others, too, and took other evidence—and, at the same time, the Government, as the noble Lord, Lord Pannick, has said, have continued to advance the same arguments. We heard those arguments last Wednesday when Chloe Smith represented the Government at a meeting of the Constitution Committee and put forward precisely the arguments which the noble Lord, Lord Pannick, has described.

It seems obvious that the fundamental right to vote is the question on which we should focus, and that the law in relation to this matter focuses almost exclusively on the rights and responsibilities of the statutory role of a returning officer and not on the right to vote. If one looks at it from the perspective of the voter, as the noble Lord, Lord Pannick, again has said, we can be talking about small numbers, but it is worth remembering that the Electoral Commission reckons that around 1,200 people were affected in 2010 by the law as it stands and the individual is very important in this respect. I would just add—not that it is significant in terms of statistical comparisons, but it is still relevant—that, in 47 constituencies in the 2010 election, fewer than 1,200 votes formed the majority, and in 28 constituencies, fewer than 600 votes formed the majority. In a sense, this can be significant, and if one puts value on the individual vote, as I certainly do, then the human right to vote is clearly very important.

The argument which was very current before our discussions with the Electoral Commission last year was that the law as it stood was secure. The Constitution Committee challenged this because when we looked at the two cases that were being relied on at that stage—one from 1901 and one from 2001, almost exactly 100 years later—it was very clear that these depended on the impact and role of the returning officers and not on the individual voter. We think that the time has come to achieve clarity about the rights and responsibilities of the individual voter, which could be done by this simple amendment. The noble Lord, Lord Pannick, has already referred to the example of Scotland. I would refer also to the example of the United States, where in the presidential elections last November there were certain polling areas where queues were in place two hours after the official closing of the poll and yet the votes were still counted. This is something that we need to look at very swiftly and in time for the 2015 election.

[Lord Tyler]

My Lords, I am very grateful to my noble friend. We strongly support the amendment. The fact that it is presented to the Committee by four very distinguished members of your Lordships’ Constitution Committee gives it rather special significance.

In general, we should trust the presiding officer in the polling station to use his or her common sense. It is their role to use their discretion in that respect. However, if anything, they should surely seek to give every opportunity to the elector who has come in good faith, and in good time in most circumstances, to vote.

I am reminded of an incident when I went at about 11 am to a very remote polling station in a draughty caravan in the middle of Bodmin Moor in a winter election. It was the smallest electorate in my then constituency; indeed, there were only 18 people on the electoral register, and 17 of them had long since voted at 11 am. Everybody knew that the 18th person had actually died in the last few weeks before the poll. Yet of course the presiding officer and his assistant had to stay there in that bitterly cold caravan for the following 11 hours.

I give that example because, of course, we do not know how many presiding officers in May 2010 used their common sense to give a ballot paper to those who were actually within the building and standing in a queue ready to vote, having been there perhaps for some time, without already being given a ballot paper. We only know about the ones who were kept out by those who thought perhaps they were doing precisely the right thing in the circumstances—the 1,200. However, in my view it is incumbent on this House and the Government to try to clarify this situation. It is clearly the case that in May 2010 a large number of people were disenfranchised by the circumstances of the particular polling station and by a sensible approach not being taken in the terms to which the noble Baroness so eloquently referred—the human right to vote in a democratic society.

--- Later in debate ---

[Lord Tyler]

I am grateful to my noble friend for what he has just said because it showed an openness of mind that I confess I have not previously witnessed from Ministers on this issue. I wonder if I could take this a step further: has he any evidence that every single presiding officer in every single polling station in the country did not take what I would regard as the common-sense view, when someone was standing there in the polling station ready to get a ballot paper when the clock struck 10 pm, and issue them with a ballot paper?

The Minister has referred to exit polls. I do not think that Parliament should worry too much about those who conduct exit polls. Those polls are taken only when people come out of the polling station, so frankly they are not relevant in the present circumstances to what we have been discussing. However, I am very encouraged by his openness of mind; perhaps with an appropriate tweak to this amendment, we might all make some progress.

[Baroness Jay of Paddington]

My Lords, before the Minister replies, I would like to add one sentence: one of the legal advisers to the Constitution Committee said that he thought it was beyond common sense to suggest that it was impossible for the parliamentary draftsmen to define a queue in terms that would be properly understood in an Act or a piece of law.

[Lord Taylor of Holbeach]

I do not know; I am not a parliamentary draftsman, but I would hesitate to define a queue that stopped existing at 10 pm so that part of the queue was within a queue and another part was in a non-queue.

I am interested in what the noble Lord said. I think that he has misunderstood the point about exit polls. They cannot be published until polls have closed, for fear that they might influence people who have not yet voted. Therefore, voters who are queuing up could be listening to the radio and getting an exit poll, and that could influence the outcome. I am sorry, but that is the very purist view about the publication of exit polls. This shows the importance of defining these matters quite strictly, because one thing about elections is that you do not want people saying, “It is not fair”. That is what noble Lords are saying about people who have been excluded from voting because they were not given the opportunity of getting a ballot paper and casting it. I accept that: it was not acceptable. I suggest, however, that the way to deal with it is to ensure that the resources to process voters are adequate to ensure that queuing is not a problem.

I am delighted that my noble friend thinks I have an openness of mind; I always have an openness of mind and think it is very important in politics to have one. However, that does not necessarily mean that I am going to be able to come back with a response that is more positive than that which I have given previously. Noble Lords should understand that. The definition that lies behind the current arrangements provides clarity for both voters and those responsible for managing electoral processes, without any ambiguity at all. The Government would not wish to put on the statute book a provision which is not only unclear—because, although the noble Baroness, Lady Jay, says that it should be possible to make it clear what a queue is, I think it would be quite difficult—but might also send a message that queues are acceptable; that as long as the resources are adequate, if there happens to be a queue formed, then it is perfectly all right. I do not believe that that is the case; I think that those responsible for organising elections should make adequate provision to process voters so that queues do not form. That is the right way to proceed.

Crime and Courts Bill [HL]

Baroness Jay of Paddington Excerpts

Monday 28th May 2012 Lords Chamber

[Baroness Jay of Paddington]

My Lords, it is a pleasure to follow the noble and learned Lord. He is right to predict that I will focus my contribution on Part 2 of the Bill, specifically those clauses and schedules that deal with judicial appointments.

As the noble and learned Lord, Lord Mackay, said, the Constitution Committee—which I have the privilege of chairing for another parliamentary Session—has just issued a major report on this subject, following a lengthy inquiry last year that lasted several months. During that inquiry, we took evidence from a wide range of serving and retired judges, lawyers, academics, politicians involved in the process of selection, and the Judicial Appointments Commission. Over this period, the committee has also had a very productive dialogue with the Government, and both the Secretary of State, Mr Clarke, and the noble Lord, Lord McNally, gave oral evidence to us.

The Government took considerable notice of the Constitution Committee’s recommendations during their formal consultation on the Bill and last week responded in detail to the report, which the Secretary of State described as a valuable and timely contribution to the debate. The committee is grateful for this response and welcomes the fact that so many of our recommendations appear in the Bill before your Lordships today.

The essential premise of our report was to ensure that the judicial appointments process remains independent, open and transparent—as has been mentioned already today—and produces a judiciary that reflects the society it judges. We were concerned that even in 2011 only 5% of judges were from minority groups and only 22% were women. The Minister has rightly said that this is an improvement but we felt that it needed to go further. Frankly, the judge who inhabits a courtroom in England and Wales is still stereotypically a white male from a fairly narrow social background.

The Constitution Committee felt that it was enormously important to emphasise the need for faster moves towards greater diversity in future appointments. Apart from the difference that this would make to the profession, this is vital to maintain the public’s confidence in the judiciary. I therefore join other noble Lords who have spoken this afternoon in very much welcoming the Government’s decision to seek to introduce flexible working in the higher courts. As the Minister has said, the provisions of Schedule 12 make possible for the first time the appointment of judges at the highest level—I emphasise, at the highest level—on a part-time, salaried basis. As the Constitution Committee noted in its report, the introduction of flexible working of this nature must help to increase the number of women in the higher courts, as has happened successfully in other professions such as medicine, for example. It was interesting that the chairman of the Judicial Appointments Commission reflected the views of many of our witnesses when he told us:

“This is the first profession that I have touched in my working life where there is not easy access to flexible working arrangements for senior positions”.

Having it, he said, “would be transformational”. We have to hope that he is right, in spite of some of the practical problems that have rightly been raised by the noble and learned Baroness, Lady Butler-Sloss.

Schedule 12 also introduces the so-called tipping or tie-breaker provision for judicial appointments to increase diversity within the judiciary. At present, the tie-breaker provisions, which are explicit in the Equality Act 2010—we must remember that that Act has not always been uncontroversial—and enable recruiters to prefer underrepresented candidates when candidates are judged equal on merit, do not apply to appointments to judicial office.

We may all agree, as has already been mentioned this afternoon, that this situation may arise relatively rarely but the Constitution Committee felt strongly that, although judicial appointments in England and Wales must continue to be made on merit, they should also continue to be based on principles that enable the adoption of the tie-breaker provision in the equality legislation. I hope that now the Bill has done this, it will not only provide a strong legal statement about the importance of diversity but, more directly, will lead to changing practice without undermining—I emphasise this—the essential merit principle.

However, it is disappointing that the Government have not placed the Lord Chancellor and the Lord Chief Justice under a statutory duty to have regard to the need to encourage diversity in the pool of applicants for judicial posts in the same way as is now required for the Judicial Appointments Commission. Such a duty, which the Constitution Committee recommended, would help to ensure that the Lord Chancellor and the Lord Chief Justice properly recognise and fulfil their leadership roles in promoting judicial diversity. Improvements in diversity will occur only with decisive and persistent leadership. Although I do not doubt the commitment of the present holders of these offices, a statutory duty would ensure a real and lasting commitment to change in this field. It would also enable those two senior judges to account for their actions in encouraging diversity. The Government’s response to this proposal by the Constitution Committee is sparse in its reasoning and I suspect that we may return to the question of a statutory duty to promote diversity later in the Bill.

The Government have also said, again disappointingly, that they are not minded to relax the operational restrictions on government-employed lawyers applying to become judges. I suggest that this is probably an unnecessary restriction. There is after all a clear public interest in ensuring that high-quality lawyers are not discouraged from entering the government service just because they may now never be able to progress later to the judiciary. It is also clear from the personnel data about government lawyers that they are, as a class, more diverse than other branches of the legal profession, so it seems logical that opening up their judicial career prospects would be likely to improve the general diversity of the judges.

Overall, I hope that the Government will, as their response to the Select Committee report suggests, give greater weight to the work of their own judicial diversity task force. Evidence to us from the previous advisory panel suggested that some earlier proposals had been sidelined. The noble Baroness, Lady Neuberger, who I am glad is speaking today and who chaired the panel which reported in 2010, told us that,

“considerably greater progress could have been made on most of what we said”,

and that,

“it did not require huge amounts of money, which has been the excuse for why some of it has not happened”.

Significantly, its proposal to introduce a formal appraisal system for judges, which the Constitution Committee also recommends, has not been accepted by Ministers.

The Bill makes a number of alterations to the structure of a judicial appointments process. As the Minister has already said, the Lord Chancellor’s powers to appoint judges below the level of the High Court are to be transferred to the Lord Chief Justice. Similarly, the Lord Chancellor’s role in appointing judicial members of tribunals is to be transferred to the Senior President of Tribunals. Both these changes are welcome, as they will promote the independence of the judiciary from the Executive and, I suspect, increase public confidence in the appointments process by more accurately reflecting the realities of judicial appointments at a lower level. I also welcome the decision to end the anomalous position whereby the President of the Supreme Court chairs the panel which appoints his successor. This was certainly something that the Constitution Committee felt was important.

There are other structural changes which are in the Bill and give cause for concern. In terms of constitutional principle, the most significant is the decision to allow the Lord Chancellor to sit as a member of the selection panels for the Lord Chief Justice and President of the Supreme Court. I have two concerns about this. First, in spite of what the Minister said, the inclusion of the Lord Chancellor on the selection panel risks the politicisation of the process, which would clearly run contrary to the principles behind it. Secondly, the Government propose to balance the inclusion of the Lord Chancellor on these selection panels with the removal of his current power to reject the decision of those panels. It would clearly be damaging for the fairness of the process if a member of the panel also had a veto over it. However, it raises the prospect, at least in theory, of the Lord Chancellor being outvoted on the panel and thus finding himself faced with a Lord Chief Justice or President of the Supreme Court with whom the Executive did not feel able to work. The Government may need to think again about this proposal, to which I am sure we will return in Committee.

Finally, I note that the Government have rejected the Constitution Committee’s suggestion to create a differential retirement age for judges. We propose 75 for the Supreme Court and Court of Appeal justices, and 70 for all the others. The reason behind this proposal is that we thought that the change would ensure that while the most senior judges, where proven judicial quality and experience are at a premium, would continue to work to the later age, more posts would become available earlier at the lower levels. The evidence to us suggested that expanding opportunities in lower tiers of the judiciary would encourage diversity, particularly those who did not follow the traditional career paths. This may well be another area that we return to later in the Bill.

I am very grateful to the Minister for agreeing to discuss the detail of the Bill further with the Constitution Committee before the House begins consideration in Committee. This once again demonstrates the great importance of your Lordships’ Select Committees in scrutinising and trying to improve legislation while a Bill is making progress through the House but away from the debate on the Floor. It is a very important part of our role as a Select Committee.

As I have already mentioned to the Minister, I apologise to him and the House as I may not be able to be here when he gives his wind-up speech. Unfortunately, I had already agreed to an evening engagement which I could not postpone at the last minute when the date of this debate was agreed. Looking at the long list of very distinguished speakers, I suspect we may not reach the end of it before I have to leave. However, I have apologised to the Minister and I apologise again to the House. I look forward very much to the next stages of this extremely important Bill.