Elections and Returning Officers

Baroness Laing of Elderslie Excerpts

Wednesday 20th October 2010 Westminster Hall

[Mrs Eleanor Laing (Epping Forest) (Con)]

I am pleased to have the opportunity to bring this matter to the House’s attention yet again, and to see that more than one or two colleagues are here. There is some interest in the matter. That is not a great surprise; if there is one thing that we can be sure Members of Parliament know at least a little about, it is elections and the conduct of elections.

There was much publicity after the general election in May this year, when we saw dreadful scenes that looked as though they came from some third-world country whose democracy was not very well developed. People queued to vote in the general election but were unable to do so after 10 o’clock due to rules made there and then—or, rather, interpreted on the spot—by returning officers.

My interest in the matter did not begin on the night of the general election. For the record, the electoral registration officer in my constituency, who is the acting returning officer, ran an extremely good and efficient election. It also had the right result. I talked to him about the process throughout the build-up to the election, because I was interested in such matters, and I saw how things were conducted in Epping Forest. It was an example of how an election ought to be run.

Although the vast majority of returning officers and electoral registration officers do their jobs impeccably and are never open to criticism, others are unfortunately not quite up to the mark. We discovered before the general election that returning officers are responsible to almost no one. A debate took place in this Chamber on 3 February 2010 in which such matters were examined in relation to election counts. At that point, there was a lot of fuss in the media about whether the result of the general election would become clear the day after or not until later. As it happens—hindsight is a wonderful thing—the true result of that particular general election did not become clear for several days. However, that cannot be blamed on the conduct of returning officers; it was a direct result of the decision of the electorate, which is another matter, and one that we are not here to debate.

The question that arose before the general election was whether the votes ought to be counted at 10 o’clock, immediately on the close of polls, or—as many returning officers decided—on the following day. Some of us got rather exercised about the decisions to wait and said that it was unacceptable behaviour on the part of returning officers. We brought the matter to this Chamber, where it was well debated. However, I was extremely surprised on doing serious research into the role and duties of returning officers to discover that their power and authority extends from a 19th-century statute and has been little modified in more than 100 years.

Parliament dealt with the difficulty in relation to whether returning officers should count votes at 10 o’clock somewhat unusually, by amending primary legislation. I tabled an amendment to the Constitutional Reform and Governance Bill. As an Opposition amendment, it looked as though it would be a talking point only, but fortunately, the then Secretary of State for Justice and Lord Chancellor, the right hon. Member for Blackburn (Mr Straw), decided that the matter needed to be dealt with there and then. He put his name to my amendment, which then became part of the Bill. By a last-minute amendment to primary legislation, returning officers, unless they could demonstrate extenuating circumstances for doing otherwise, were required to start counting votes immediately on the close of poll. That gave us the right results for the last general election, but surely it cannot be right that the law on such a matter should be made ad hoc, in primary legislation, just a few weeks before a general election.

My purpose in asking for this debate was to allow the issues to be aired once again and to begin a general discussion now, I hope, to help the Minister, who I know is intent on improving matters in that area of the law. I also hope that we can begin a discussion that considers what the duties of returning officers are and who undertakes the duty of electoral registration officer and then acting returning officer.

Returning officers, as I am sure hon. Members are aware, are usually not paid officials but the high sheriff of a county, for example: another leftover from 19th-century legislation that has never been properly updated. The person with the official duty and responsibility of returning officer is the titular head of the returning officer’s organisation but takes no actual part whatever in the running of elections, whether day to day, annually or every four or five years. That work is done by the acting returning officer. When one goes back into statute to examine where the acting returning officer’s power derives from, one finds that it is a grey area. Those matters must be updated. In most cases, although the returning officer is, perhaps, the high sheriff or lord lieutenant, the acting returning officer is usually the electoral registration officer, often a high-ranking official in a local authority.

After the debacle during the general election in May, when a significant number of voters were left standing outside polling stations, denied their right to vote due to administrative upheaval and a lack of administrative control and planning, we discovered that acting returning officers are paid a considerable fee for their work in organising a general election. I make no complaint about the structure of that system because, of course, the duties associated with organising a general election only occur once every four or five years. Happily, the general election is now likely to be on a certain date every five years. That will perhaps aid the ability to plan because we will have far more certainty about the date of an election. Indeed, we should all be happy about that.

If someone undertakes to do a job every four or five years, of course, it should not be a permanent position—the job should be paid, and the duties allocated and required only for that time. However, on further examination of the situation, we discovered that very large sums were being paid to returning officers. That has been well documented so I will not read out the sums, because it does not help the debate to put a particular person on the spot, give a particular name and say how much he or she was paid to do a job.

[Chris Bryant (Rhondda) (Lab)]

But that is what the hon. Lady’s Government have just done in relation to everyone earning more than £80,000. I do not know why she is being so coy about the matter.

[Mrs Laing]

I accept the shadow Minister’s comment. I understand what he is saying, but he is making a different point on a different matter. I have a list of returning officers who allegedly did not do their jobs very well and yet were paid sums in excess of £12,000 or £15,000 to do that particular job for a few weeks. I am not the kind of politician who embarrasses individual members of society by announcing their names to be recorded in Hansard. We will leave that sort of thing to the tabloid press. The point is that there is no chain of accountability. That is where the problem lies, and that is where the problem lay when we examined how returning officers could be required or even just encouraged to start the election count upon the close of poll. That is also what we discovered when inquiries where carried out correctly by the Electoral Commission into how administration was taken forward for the election in May this year.

It is appalling that senior people in local authorities who have a position of responsibility and normally command salaries well in excess of £100,000—usually far more than that, as far as I can see from the statistics—have not properly planned for a general election and have got things so badly wrong that people were deprived of their vote. In the instances that occurred in May, it is fortunate that there were no cases in which the number of electors who allegedly were unable to vote because of returning officers’ maladministration was greater than the majority in that particular seat. Therefore, there was no reason for an appeal to the courts on the election result. In one way, that is fortunate because it would have meant uncertainty about the results of the election. In another way, however, it is unfortunate, because the matter has not been properly examined, which is another reason for my initiating this debate.

[Mr John Leech (Manchester, Withington) (LD)]

The hon. Lady is right: there is no evidence to suggest that any outcome would be different as a result of people being unable to vote on election day. However, we can never be sure about how many people turned up at polling stations, saw the enormously long queues that resulted from all sorts of chaos, went away again and did not bother coming back. That was a big disincentive in some areas, where people saw big queues and thought, “Well, I can’t really be bothered. I’ll just go home and won’t bother voting.”

[Mrs Laing]

The hon. Gentleman is absolutely correct; I am glad he made that point. We have spoken a lot lately about the need to encourage people to be involved in the democratic process and to encourage all age groups and people across the social and economic spectrum to register and use their vote. I mentioned earlier the number of people who allegedly turned up at the polling station and were denied their right to vote. That number may even be far greater than we estimate, because of the situation that he has described.

[Iain Stewart (Milton Keynes South) (Con)]

It is also important to note that the problems arose when the turnout was not particularly high. Turnout increased marginally in 2010 compared with the previous general election, but it was nowhere near the turnout figures of 75% or 80% that we used to have in the elections of the 1970s and 1980s. If we return to that level of turnout, I suspect that the problems that occurred will be magnified many times over.

[Mrs Laing]

My hon. Friend is, as ever, absolutely right. That is one of the problems we can foresee. We are all working hard—I know that the Minister in particular is doing so—to bring in individual voter registration as soon as possible. We all hope that individual voter registration will encourage more people to be involved, to register and to use their vote. We also find that where the media tell people that the outcome of an election is a foregone conclusion, many people think that there is no need to go and vote. If we have closer elections and it appears that there could, again, be a change of Government—let us hope not, but I suppose that it will happen one day—people are more likely to vote and there will be higher turnouts.

If the Parliamentary Voting System and Constituencies Bill, which is currently before the House of Commons, succeeds in going through Parliament, we will have a referendum next May and it is likely there will be a high turnout—although I have argued that that is not likely. However, in any case, there will be a national plebiscite where everyone will be given the opportunity to vote. That is not very far away. So although we will not have a general election for another four and a half years, we will have a full national election of sorts next May. Therefore, by securing this debate, I hope that I am helping to begin the discussion on matters that need to be taken into consideration before next May and the next set of elections.

One of the subjects that has not yet been fully explored is the role of the Electoral Commission, which is still a fairly new body. In many ways, it has been very successful. However, in some ways, it is still settling into its role. When taking the advice of the Electoral Commission on how to deal with the issue of returning officers and the timing of the count, we discovered that it has no power to require returning officers to act in a particular manner. The Electoral Commission only has the power to issue guidance.

As a matter for consideration, I suggest that such a situation is not fair. The Electoral Commission and its chairman were given the blame for what went wrong at 10 o’clock on election day, but it is not fair that they should take the blame when they had no power beforehand to put matters right. At 10 o’clock on election night, the Electoral Commission had no power to say to individual returning officers, “No, you can’t do this. You must allow people to vote. You must keep the doors open.” It had no power to tell people to act in a particular way. Nobody had any power. The Minister had no power; the Electoral Commission had no power; the local authorities had no power. There is no line of reporting or of authority for electoral registration officers and acting returning officers. In a modern democracy, where we spend hour upon hour in the Chamber discussing the minutiae of elections and their administration, as we have done over the past few days, it is appalling to discover that there is no line of authority whereby the administration of our elections can be properly decided.

In the run-up to the election, during which I had been fairly vocal about the problem of returning officers and the 10 o’clock vote, I found myself in a live radio debate with a particular returning officer, a lady from the north of England. I made the point during that debate that returning officers ought to be responsible to the electorate and ought to act responsibly. The lady’s retort, which was made live on the radio, was more or less along these lines: “How dare you, a Member of Parliament, try to interfere with how I, a returning officer, do my job. I am responsible to no one and I won’t listen to you, Madam.” Those were not her exact words, but it was clear that her message to me and to the three or four people listening was that returning officers were responsible to no one, and she was outraged that I would even suggest that Parliament should take some action in that respect. I was equally outraged in my response, but I will not repeat what I said. The fact is that the count in that constituency took place, I am glad to say, at 10 o’clock on election night.

The 10 o’clock issue is irrelevant; how our electoral system is administered is what is important. Over the past few years, various complications have arisen in elections, such as having more than one election on the same day, or different kinds of elections under different voting systems on the same day, as happens in Scotland. There is a danger that such complications will arise across the country next May, when a referendum and other elections will take place simultaneously in more than 80% of the UK. Indeed, in some parts of the country, three types of election will take place on the same day. On this occasion I do not object in principle to simultaneous elections, although I have done so on other occasions. The purpose of the debate is to open the discussion on how we ensure that elections are undertaken in a proper, measured and watertight fashion.

My first suggestion to the Minister is that the powers and duties of the Electoral Commission should be reconsidered and that perhaps the way forward is that it ought to be given a power to direct returning officers, electoral registration officers and acting returning officers. My second suggestion, which I am happy for the Minister to knock straight on the head, although I think it ought to be discussed, relates to the hypothecation of public money. The Treasury is implacably opposed to hypothecation, and there are good reasons for that, which I have always supported. However, the additional funds for electoral registration officers setting up and administering elections come directly from the Treasury, rather than local taxpayers. That is absolutely right, because if the money came from local taxpayers, a returning officer would have the excuse of saying, “Well, in this local authority we have had a particular problem with housing this year, and we have spent so much money on that that we simply do not have enough to spend on the proper administration of elections.” That would be the case whatever the current concern in a local authority, whether it is asylum seekers or an influx of Gypsies and Travellers. However, such excuses cannot be made because the money spent on elections comes directly from the centre.

Having come directly from the centre, however, that money is not ring-fenced or earmarked, so there is no hypothecation. I am suggesting, for the sake of argument, that the principle of hypothecation in that instance ought to be revisited. We are talking about money allocated from central Government for a specific purpose over a specific period of time, so that money that comes to returning officers and local authorities for the funding of electoral administration ought to be hypothecated and ring-fenced. I appreciate that the Minister may be bound to say that Treasury rules do not permit hypothecation, which I understand, but this is only the beginning of the argument.

[Mr Brian Binley (Northampton South) (Con)]

I am particularly pleased that my hon. Friend has raised this matter, as she has been doing for some years in the House through the auspices of the 1922 committee and with the Electoral Commission itself. My fear is that money is being leached across and leached out, as there is great pressure for that to happen in times of economic stress. I sincerely welcome her plea to the Minister and urge him to take the matter on board. Unless the Government do something about it, in these times of stress we will not see an improvement or have proper money spent on the administration of elections or on the training of registration officers and acting returning officers, and therein lies one of the vital points.

[Mrs Laing]

My hon. Friend, as ever, makes an excellent point. I know that he is rather an expert in those matters, and it is a pleasure to have his wisdom and guidance on them.

The basic principle is one of confidence. As a modern democracy, we must have confidence in how our elections are administered. I would have raised the matter for discussion—I hope that I would have had the opportunity to do so—even if the queues had not formed at polling stations at 10 o’clock on election night. Even before that happened, most of the questions that I have asked this morning were unanswered and are waiting for action. Having seen what happened at the close of the polls, I think that all of us who are involved in any way in the democratic process ought to hear alarm bells ringing. I know that the Minister takes the matter seriously and hope that I am being helpful by giving him one of the first opportunities to examine the matter and assure Members that the Government will take action before we have any serious national election to ensure that we have a proper accountability structure for those administering our electoral system.

--- Later in debate ---

[Chris Bryant]

I cannot keep it for this afternoon because I do not think that the Minister will be responding to the debate then. However, I thought that he was a little complacent about that element last Monday afternoon. He said that the issue was not an enormous problem and that there was not an enormous number of instances in which it had happened. The figure of 1,200 was suggested, but I suspect that many more people were affected. I suspect that in Hackney North and Stoke Newington alone more than 1,500 people ended up not being able to vote because of the situation. I hope that the Minister will return to the issue with some means of providing consistency around the country.

The inconsistency around the country applies not only to what happens at 10 o’clock but to a whole series of different issues. In part, that is precisely because of the reason adduced by the hon. Member for Epping Forest: although the responsibilities and powers are laid down in statute, a wide amount of freedom is given to the returning officers and there is little accountability. I agree with the hon. Member for Manchester, Withington that it is ludicrous that such a job is thought of as additional to the job of electoral registration officer, and that somehow people have to be additionally recompensed in order to perform their function when there is a general election. I think that it should be part of the standard job description and that no additional fees should be payable. It should be run of the mill and part of doing the job. Frankly, if someone does not do the job well, they should not remain in it. It should not be a question of getting extra payments.

[Mrs Laing]

It is worth going over that point again. The hon. Gentleman is absolutely right: not only is it not part of the job description of a local authority employee, but there is also a lack of accountability. The fee for doing the job comes from central funds, but there is no line of accountability to that. As we have seen, some people were paid perhaps £15,000 for administering matters this year. They got it wrong and were not required to pay a penny back.

[Chris Bryant]

The hon. Lady makes her point extremely well. I hope that the Minister will think about whether we need to look at the structure of how returning officers—in most cases, broadly speaking, an honorific title—and those beneath them are appointed.

In my constituency in 2001, the returning officer appointed himself because he wanted to announce the election result. Unfortunately, he could not speak Welsh. He decided that he had to make the announcement in Welsh first, despite the fact that remarkably few people in the Rhondda speak Welsh, and very few people in the hall spoke it. He certainly did not speak Welsh, so what he announced was virtually incomprehensible. The BBC immediately switched off and went somewhere else. We would be better off with the electoral registration officer, who is the person who knows the law best, being the returning officer. I am sorry if that means that we will be sacking all the high sheriffs and lord lieutenants of the land. I mean no disservice to them but it is a professional job that must be done on a professional basis.

Another point raised was about when the count should take place. I think that people like the drama of election night. It is fascinating that people are watching the BBC’s 1970 and 1974 election programmes, which are now being re-shown. It is quite exciting thinking “I can’t remember who won Plymouth, Devonport” or wherever. I had an Australian friend who was my lodger. This was a few years ago. He was fascinated by Australian politics and refused to watch any news for a week until his mother had sent him the five DVDs with the election television programme from Australia. It took even longer than it might have because the count takes a long time in Australia.

My point is that the drama of election night is very important and, as we saw in our election, all the more important because sometimes it can determine the feeling, when there is to be a hung Parliament, about how Governments may or may not be formed. That is why there should be consistency across the land. If there are combined elections, the general election votes should be counted first, and the count should not start at 4.19 in the morning and finish at 8 o’clock in the morning. That explains why the hon. Member for Milton Keynes North looked just a little weary by the time his election result came out. We should be moving to greater consistency in that regard.

That leaves us with the problem in relation to combining polls. If we are to go to a fixed-term Parliament when we already have fixed-term council elections and fixed-term Assembly elections in Wales and Northern Ireland and for the Parliament in Scotland, we either decide that they will all coincide always, so that that is a fixed part of the programme as it is in the United States of America, where there are elections every two years, or we decide that we will not combine polls at all, because that is better. I think that it is a bit odd that we have elections on the first Thursday in May, because April is a pretty rubbish month to go campaigning. Chaucer got it right when he talked about April with its showers. Perhaps we should think about another month. I say that as someone who was first elected in June rather than May.

Obviously, it is more important that we hear from the Minister than that we hear further expatiations from me. I just hope that the issues of consistency around the country can be addressed, as well as the finance and the accountability of returning officers.

--- Later in debate ---

[Mr Harper]

My hon. Friend makes a good point, and it comes back to accountability—an issue that has been mentioned by a number of Members. I would say a couple of things about that, and about the payments. The returning officer’s job is separate from and in addition to their normal duties, which ensures that in carrying out those duties they are not accountable to politicians, who might have an interest in the election. Returning officers are not paid for just the one night; a lot of planning and preparation goes into ensuring that elections run smoothly. Indeed, some returning officers appoint deputies to help them, and with whom they share the fees. The Government have issued guidance in relation to national elections, which recommends that that happens.

One of the things that Members have highlighted is the issue of what happens if things go wrong: what is the accountability? In Manchester, the council’s chief executive, who is the acting returning officer, has effectively taken the view that because there were problems in one of the constituencies—Manchester, Withington—he would not take his fee for that. Some other returning officers have also taken that view. Members have suggested that someone should have the ability to make such a judgment, and to not pay the fee. We will be experimenting with that idea, to some extent, in the provisions in the Parliamentary Voting System and Constituencies Bill.

Regarding the referendum, the chief counting officer—the chairman of the Electoral Commission—is responsible for its conduct, and appoints regional counting officers and counting officers. Those officers will be the same people as the returning officers, but we will—if Parliament agrees—give the chief counting officer the ability to withhold the fee for their duties in conducting the referendum, if performance is not adequate. We will consider whether that has the desired effect, and will review the measure after the referendum to see whether we might want to consider it more widely.

[Mrs Laing]

I thank the Minister for his kind remarks earlier. I have for the first time just seen a good point—a plus point—to having the referendum. The Minister will appreciate that that measure could be a sort of pilot scheme for a system of accountability for returning officers, and that would be very welcome.

[Mr Harper]

I am very pleased that views, certainly on the Government Benches, are hardening in support of our Bill. I look forward to further progress today.

It is worth noting that, although my hon. Friend the Member for Epping Forest suggested that the Electoral Commission should have more powers to direct returning officers in their conduct of elections—not referendums—the Electoral Commission itself has called for greater accountability, but not for greater powers of direction, with the exception of the referendum, the outcome of which they are responsible for. We will think further about that, but we will first see how the step of making the Electoral Commission responsible for the fee for the referendum works—the pros and cons—and whether it might be something to bring in more widely for returning officers. The difficulty would be in deciding to whom they would be accountable, and who would make that decision. We will, however, look at that further, and it might be something to debate after the referendum.

In the six minutes that remain, let me just deal with some of the other issues that my hon. Friend the Member for Epping Forest, and other Members, raised. One issue that she raised, which was supported by my hon. Friend the Member for Northampton South (Mr Binley), was the hypothecation or ring-fencing of funding. My hon. Friend the Member for Epping Forest made two points. For national parliamentary elections, the funding, as she correctly said, is ring-fenced. It comes directly from the Consolidated Fund and the Government say to returning officers that for properly incurred expenditure to do with the election the money is payable from the centre. That is clear, and my hon. Friend made it clear.

The other point is about the money for electoral registration. At the moment, that money is not ring-fenced; it is part of the revenue support grant. I have heard a number of Members state that the money in that revenue support fund is not used for electoral registration, but there is no evidence of that. If people were to bring forward evidence, we would look at the issue very seriously. The hon. Member for Rhondda mentioned those points as well. Given that the electoral registration officer is a senior member of the local authority officer team, the acting returning officer responsible for delivering the elections is often the chief executive, and the other decision makers in local authorities are councillors who have to get elected, I do not understand why we should think it likely that that set of individuals would de-prioritise spending on elections, since that is something in which we as politicians have a great interest. So, I am not convinced intellectually that there should be a problem, and there is very little, if any, evidence that that is happening—if there is, the Government will look at it. It is not just a Treasury rule; it is the general view of this Government that we should allow local authorities to make judgments about how much money needs to be spent in different areas, although they do have legal duties to ensure that elections are well conducted and that the registration system works well.

As we roll out individual voter registration, I hope that we can tackle both sides of the coin. We can deal with the problem of people who are on the register but should not be—a number of Members mentioned that this morning—and, equally importantly, we can look at people who are eligible to vote but are not on the register. The resources issue is important, and I have written to every local authority chief executive about our data-matching pilots. I encourage Members to encourage their local authorities to participate. We hope to enable local authorities to use other public data sources to identify people who are eligible to vote but not on the register, or the other way around, so that they can target them and use limited resources more effectively, to ensure that the register is both accurate and complete. The funding for the pilots will be met from central Government. I encourage Members, particularly if they feel that there are problems in their areas, either with accuracy or completeness, to encourage their local authorities to participate. I hope that that reassures my hon. Friend the Member for Gillingham and Rainham (Rehman Chishti), who raised some of those issues.

I have dealt with some of the issues raised by my hon. Friend the Member for Manchester, Withington. It is good to hear that the issue of the number of polling stations has been dealt with. He raised some very good points about the combination of elections, and about a differential franchise between the local, European and parliamentary franchises. We are alive to that issue, with the combined election and referendum that we hope to see next year, and one reason why we have been working very closely with the Electoral Commission and with those responsible for delivering elections is to ensure that there is clear guidance. In their planning for the referendum and the elections, the Electoral Commission and acting returning officers will take exactly that into account, to ensure that in parts of the country where they are not used to such a combination there is clear guidance and clear planning, to avoid those sorts of problems.

Finally, the issue of combination, which the hon. Member for Rhondda raised, is interesting, and we in the House need to think about that more widely. There is a view that no elections should be combined, but given that the Government are looking at more fixed terms, including a fixed term for this Parliament, and are also considering having more elections—for police commissioners for example—it would be difficult to have all those elections on separate days. It is worth thinking about the argument, “If you’re going to combine them you should go for it big time and make sure it’s well done,” and considering whether we effectively have a big democracy day in the same way as they do in the US, where everything is on the same day. It would be helpful if Members thought about that, and I am sure that we will get the opportunity to debate it in due course.

This has been a good debate. We have touched on a number of issues that are very important to Members, and I once again thank my hon. Friend the Member for Epping Forest for enabling us to have the debate. I look forward to debating with, or listening to, her this afternoon, when we continue consideration of the Parliamentary Voting System and Constituencies Bill.