Constitutional Law

Baroness Primarolo Excerpts

Wednesday 24th November 2010 Commons Chamber

[David Mundell]

I am very clear that I will be voting no in the AV referendum.

[Madam Deputy Speaker (Dawn Primarolo)]

Order. I know that the Minister was tempted by that question, but perhaps we could stick to the draft order before us.

[David Mundell]

I give way to the hon. Member for East Lothian (Fiona O'Donnell).

[Fiona O'Donnell (East Lothian) (Lab)]

Perhaps we can reframe the question. With 60 seconds on the doorstep to speak to a voter in your constituency, will you talk to them about the AV referendum, or will you press the case for your party in Scotland?

[Madam Deputy Speaker]

Order. It is not me who will be doing that. I would be grateful if hon. Members addressed their remarks to the Minister, not to me.

[David Mundell]

I will take your advice and stick to the discussion of the order, Madam Deputy Speaker. I would like to refer hon. Members—I am sure that they will be interested in this—to a correction slip that was associated with the draft order. It makes a number of typographical corrections to the draft instrument, which will become part of the final order for printing if the draft is approved by Parliament.

--- Later in debate ---

[Mike Freer (Finchley and Golders Green) (Con)]

To be helpful to the Minister, I would like to point out that in London we had the mayoral elections as well as the European elections, which have very different electorates. If the Minister—

[Madam Deputy Speaker]

Order. I am sure that the Minister is very grateful for the hon. Gentleman’s help, but let us stick to Scotland.

[David Mundell]

Thank you, Madam Deputy Speaker. I shall continue with my summary of the order’s impact.

There will be separate ballot papers for the constituency and regional votes. Registered party names must be used on ballot papers, and the design of the ballot paper follows the principles set out in the Electoral Commission’s publication “Making your mark: Good practice for designing voter materials: guidance for government policy-makers”. There will be a longer timetable for running the election, increased from 21 to 28 days, and to accommodate the administrative demands of increased postal voting there will be a longer period between close of nominations and the date of election from 16 days before the poll to 23 days.

The deadline for registering to vote by post and the earliest time that postal votes can be issued is still 11 days before the poll. This longer period between the close of nominations and the date of the election helps to accommodate the increased demand to vote by post. Once all names of all candidates are known, ballot papers can be printed without any delays and sent out immediately after the deadline for registering for a postal vote has passed. For consistency, we have brought the control of donations to candidates and limits on candidates expenses into line with the principles set out in the Westminster rules.

Apart from the consolidation of the 2008 and 2009 amendments to the 2007 order, the main new changes that have been made are as follows. Article 5(2) has been amended to reflect the provisions of sections 18A and 18B of the Representation of the People Act 1983, which set out the requirements for the review of polling districts and places. Article 36 applies to candidates at Scottish parliamentary elections—other than party list candidates—the regime for control of donations to candidates that applies to parliamentary elections by virtue of section 71A of the Representation of the People Act 1983.

Article 43 limits the expenses that may be incurred by or on behalf of candidates—other than party list candidates—in the pre-candidacy or long campaign period before a Scottish parliamentary general election. This reflects the position that applies to parliamentary general elections by virtue of section 76ZA of the Representation of the People Act 1983.

Article 47 incorporates the revised requirements for candidates’ returns for election expenses contained in section 81 of the Representation of the People Act 1983. Article 74 now reflects the requirements of section 110 of the Representation of the People Act 1983 in relation to the information that has to appear on election publications.

Article 88 increases the minimum period between the Dissolution of the Scottish Parliament and the day of poll from 21 to 28 days. This reflects the increase in the overall timetable for Scottish Parliament elections recommended in the Gould report. I am sure that the Opposition Front-Bench team will note the impact of the royal wedding bank holiday on the date of Dissolution of the Scottish Parliament ahead of the Scottish elections. This reflects the increase in the overall timetable for Scottish Parliament elections that was recommended in the Gould report.

Paragraphs 1(3) and 2(5) of schedule 1 have been amended to allow electoral registration officers to supply returning officers and other persons or organisations with a consolidated version of the register that takes account of any alterations, as opposed to having to provide a copy of the original register and individual copies of the notices of alteration.

Rule 1 of schedule 2 provides the timetable for elections. There is no longer to be a separate timetable for by-elections. Indeed, it may be of interest to hon. Ladies who are still members of the Scottish Parliament that the date has passed for which a Scottish Parliament by-election can be held ahead of the Scottish Parliament elections.

Rule 20 of schedule 2 allows for minor errors on nomination forms to be corrected by either the constituency or regional returning officer. Rule 48(3)(b) of schedule 2 has been amended to allow grandparents or grandchildren to assist a person with disabilities to vote at a polling station. Rule 49(7) of schedule 2 now requires the voter to sign the tendered votes list, which is in line with rule 40(3) of the parliamentary election rules. Rules 69 to 71 of schedule 2 and paragraph 30 of Schedule 4 have been amended to reflect the transfer of responsibility for the storage of election documents from sheriff clerks to constituency returning officers.

Rules 72 to 78 of schedule 2 have been updated to reflect the provisions relating to the death of a candidate during the election period which were introduced by section 24 of the Electoral Administration Act 2006. Rule 79 of schedule 2 has been amended to specify what information on Members should be entered in the Scottish Parliament’s returns book, and to restrict the availability of the returns book for public inspection to the life of the Parliament or to such later time as the Presiding Officer of the Scottish Parliament may direct.

Paragraph 10 of schedule 3 has been amended to include a requirement for electoral registration officers to inform a proxy that they have been appointed, and to inform that proxy of the length of their appointment. Paragraphs 16 to 21 of schedule 3 provide for limited access to, and the supply of copies of, absent voting records—such as the postal voters list—for candidates, political parties and elected representatives, as well as public inspection of those records under supervision. That reflects the United Kingdom position under the Representation of the People (Scotland) Regulations 2001.

Paragraph 5(5) of schedule 4 has been amended to allow the returning officer to determine which of a candidate’s proposed agents are to be appointed for the purpose of attending the postal voting proceedings if the list submitted by the candidate contains more names than have been authorised by the returning officer.

I think the House will acknowledge that we have already had a full discussion of the impact of holding AV referendum on the same day as the Scottish parliamentary elections. Opposition Members may wish to make further contributions in the time that remains. However, given that the hon. Member for Edinburgh East (Sheila Gilmore) raised the issue of the clash of elections in 2015, which arises in the Fixed-term Parliaments Bill, I want to say a bit more about that.

The Government recognise the concerns raised about the coincidence of elections, and we are consulting the Presiding Officer of the Scottish Parliament, the Scottish Government and the parties in Scotland. Specifically, we are consulting on whether provision should be made in the Fixed-term Parliaments Bill enabling the Scottish Parliament to resolve, with a two-thirds majority, to delay its election by up to six months to avoid a coincidence with the elections to the House of Commons. That would supplement the existing powers in the Scotland Act which allow the Parliament to dissolve early.

--- Later in debate ---

[Mr MacNeil]

To be absolutely honest, I do not recall that, but I am grateful to my hon. Friend for raising it. Presumably, when those ballot papers were being designed someone thought that would not be an issue but lo and behold it did become an issue in Florida and other areas.

The problems I am highlighting could have been avoided if the Government had followed the Electoral Commission’s suggestion of user-testing the new ballot papers. That has already been mentioned. As far as we can tell, the Government have not made any attempt to get the new ballot paper checked. Even the ballot paper in the ill-fated 2007 election was user-tested by at least 100 people. That number was small, given what happened, but better than none and better than what is happening now.

Without independent evaluation, we cannot be sure that the ballot paper will be easily understood and will not lead to confusion. In addition, we will, or could, have an AV referendum on the same day using a slightly different ballot paper and a different design altogether. As none of the ballot papers has been tested independently, we cannot assume that the vast majority—towards 100%—of people will understand these ballot papers, just as I cannot assume that the hon. Member for Midlothian (Mr Hamilton) would understand me if I started speaking in Gaelic. It might make sense to me, but countless others, including the hon. Gentleman, might be left in the dark.

This is not the first time that the Scotland Office will have heard our concerns. [Interruption.] The hon. Gentleman asks me to translate—he probably assumes that I am speaking in Gaelic already. [Interruption.] It is time he learned some.

[Madam Deputy Speaker]

Order. This is not a private conversation between the hon. Member for Na h-Eileanan an Iar (Mr MacNeil) and the Whip. If the hon. Gentleman addressed the Chamber it would help us all.

[Mr MacNeil]

I apologise, Madam Deputy Speaker. The hon. Gentleman tempts me unduly.

Since May, we have had difficulty in getting copies of the order. When we did so in June, they were lacking in detail, specifically the previously mentioned ballot forms. We were told we would receive a near final copy of the draft order by the end of June, but we saw nothing until the order was laid before the House on 25 October—the third day of the Committee on the Parliamentary Voting System and Constituencies Bill.

Of the 27 issues we have with the drafting of the order, I shall, as I said, highlight but a few. The heading for part 2 seems to have been lifted from the Representation of the People Act 1983. It is one thing to lift a title when it has something to do with the order, but when—as in this case—the title has little or nothing at all to do with our elections, copying it from the Act misses the fact that the order contains no provisions on the franchise. There is no separate Scottish parliamentary election franchise; the franchise for voting at an election to the Scottish Parliament is in section 11 of the Scotland Act 1998. Nothing in the order can add anything to those provisions, or take anything away from them, given the extent of the order-making power under section 12(1) of the Scotland Act. The franchise is contained in primary legislation enacted by the UK Parliament rather than in an Act of the Scottish Parliament or other secondary legislation.

The heading should reflect the actual content of part 2, not the legislation it happens to have been adapted from. In this context, the “Oxford English Dictionary” defines “franchise” as:

“The right or privilege of voting in public elections—especially for members of a legislative body.”

Provisions on the electoral register relate simply to the mechanisms for the exercise of the right, not to the right itself.

Under article 43, the translation of the new limits for Westminster elections could lead to unforeseen campaign finance consequences. We note that if the Parliamentary Voting System and Constituencies Bill becomes law, there will be a combined ballot in May 2011. As highlighted by the Channel 4 News and Bureau of Investigative Journalism inquiry into certain expenses incurred in the 2010 general election, the attribution of expenses between different electoral events can be subject to a number of interpretations. That opens up the possibility that the expenses limit attributable to the referendum could be used to circumvent the limitation of election expenses at both candidate and party level—perhaps a loophole.

It has been noted that in the event of a combined election, with the main political parties in Scotland all making the necessary declarations to become permitted participants, the Conservative party may be able to spend £5 million, the Labour and Liberal Democrat parties £4 million and the SNP £500,000. It is entirely possible that the PVSC Bill will not have received Royal Assent before 5 January 2011, which marks the start of the regulated periods for the Scottish Parliament elections. If that is the case, referendum expenditure at that point will be unregulated, as the referendum period under the Bill commences on Royal Assent. As I have said, the SI could create a massive financial loophole for campaign spending.

In article 88 of the draft order, it seems that the Scottish Parliament Corporate Body was not consulted regarding the date of Dissolution. In 2002, when changes being made to the 1999 order reduced the Dissolution period for the Scottish Parliament from 25 days to 21 days, that process was subject to consultation and, indeed, discussion. We are having trouble finding any evidence of the same happening with this draft order. As we all know, article 88 changes the number of working days in the Parliament. It is my hope that someone from the Scotland Office was in close contact with the Scottish Government or Parliament. Can we have some confirmation that agreement was sought from the Scottish Parliament or the Government for the change?

The entire process has been devoid of political party consultation, which, believe it or not, is important. Our parties, across the House and the devolved legislatures, have the experience and knowledge to help draft election legislation. Would the Government not consult the construction industry on legislation related to it? Why then have we had such a hard time in getting information and consultation on this particular order?

One might wonder why we need to be consulted. Surely the lack of political parties in the elections process would be welcome. However, the Gould report stated:

“Electoral legislation—especially in a fragmented legislative environment—is nuanced and dense. Understanding is usually built up through years of experience ‘on the ground’, whether as an administrator or a party activist. This understanding is difficult to develop on a purely intellectual level, which is why practitioner input is vital.”

The Government have rushed through Parliament all aspects of the legislation relating to elections in Scotland. This has led to the drastic addition of critical amendments on the hoof. We have not been able to study these issues properly, and we can expect that more amendments will be pushed through the House of Lords before the process is over.