Electoral Registration and Administration Bill

Lord Gardiner of Kimble Excerpts

Monday 14th January 2013 Lords Chamber

[Lord Gardiner of Kimble]

My Lords, I thank all noble Lords for this wide-ranging debate. The amendments in this group seek to remove the 15-year qualifying period for overseas electors and enable the Secretary of State to remove or extend the qualifying period via secondary legislation. Amendments in this group also seek to extend the 12-month registration period for overseas electors and to enable overseas electors to register and vote online.

I know that my noble friend Lord Lexden feels strongly about these matters, and I am well aware of the continuing loyalty to the United Kingdom of so many who have lived and worked overseas for many years. Indeed, this was echoed by my noble friend Lord Norton.

The current 15-year time limit on overseas voting rights, which Amendment 25 seeks to remove, was approved by an earlier Parliament. Whether the time limit remains appropriate is a wider question, which remains under consideration within government. I refer to what the noble Lord, Lord Wills, said about overseas employees. British Council employees, for instance, already have that continuing right, as well as other sectors. Therefore, his point will be part of that continuing consideration. There are valid arguments on both sides which need to be carefully considered alongside any practical issues before any informed decisions can be taken.

In the mean time, we have already taken steps in this Bill to improve the overseas voting process. The proposals we are introducing to extend the electoral timetable for UK parliamentary elections will facilitate greater voter participation. As part of the move to individual electoral registration, I am happy to announce that we also plan to remove the requirement for a person’s initial application as an overseas elector to be attested by another British citizen who is resident abroad. This change will simplify the registration process for electors living overseas.

Moving to Amendment 26, we believe that the franchise for UK elections should remain set out in primary legislation. It would be very unusual to provide for a change to the franchise in secondary legislation. Proposals regarding the franchise are important matters which should always be considered by Parliament before they become law.

Regarding Amendment 27, it is important that overseas electors update their registration and verify their details each year along the same lines as UK electors. This helps to ensure that postal ballots are despatched to the correct address whenever an election is held and enables the electoral registration officer to verify that an overseas elector’s 15-year qualifying period has not elapsed. Allowing overseas electors to remain registered until after the next general election would lead to inaccuracies in the register and open up avenues for others potentially to use fraudulently another person’s registration or to vote despite being ineligible.

Amendment 28 would compel local authorities to provide an online facility for overseas electors to make the declarations necessary to register to vote. Providing a full online facility for applications to be made that is similar to the domestic system that we are creating could prove to be very expensive relative to the number of people who are registered overseas, largely due to the necessary security against fraud that would need to be built in. We have, however, not ruled this out in the medium term and intend to see how much uptake there is of the domestic online system before making a decision.

While I support the sentiment behind Amendment 54 —that steps should be taken to enable those based overseas to participate effectively in elections—I do not think a provision to vote online is the best way to facilitate participation for this group. As noble Lords are aware, electronic voting is not in use at any statutory elections or referendums in the UK. It was piloted and considered by the previous Government and in some other countries but it has not been pursued in the absence of evidence of improved turnout and because of concerns about security.

The Government are assisting overseas voters to receive and return postal ballot packs. The extension to the electoral timetable from 17 to 25 working days will benefit overseas voters. Given the measures already undertaken to assist postal voting, the proposals to simplify registration and the ongoing consideration of the 15-year limit on overseas registration, I ask my noble friend to withdraw his amendment.

[Lord Lexden]

My Lords, we have had a useful and productive debate on an issue of international as well as national importance. I am grateful to all those who have taken part and illuminated various aspects of the issue. At the centre stands the principle, so clearly stated by my noble friend Lord Norton of Louth, that British overseas citizens who want to take part in our elections, reflecting their enduring commitment to our country, should be entitled to do so, particularly since they are disenfranchised in the countries where they live. Voting should rest on nationality not on residence or anything else.

I listened with particular care to the Minister’s speech and noted one or two encouraging points. Overall, however, I listened with some disappointment. I shall read his comments in full and reflect on them further. For now, my Lords, I beg leave to withdraw the amendment.

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[Lord Falconer of Thoroton]

My Lords, we have two amendments in this group. They chime with the point that the noble Lord, Lord Rennard, is making; namely, is the Bill intending to dilute the powers of electoral registration officers and the Electoral Commission?

Amendment 39A seeks to address concerns held by the Electoral Commission that Schedule 4 waters down the provisions of the Representation of the People Act 1983 that required electoral registration officers to take all necessary steps in carrying out their duties. Our amendment proposes to remove this subsection and is intended to give the Government an opportunity to explain their thinking on this, and it very much reflects the point made by the noble Lord, Lord Rennard.

With regard to Amendment 39C, this Bill downgrades the role of the Electoral Commission in the transition to and rollout of individual electoral registration. We have sought several opportunities to amend this Bill to give the Electoral Commission more power. This amendment aims to give power to the Electoral Commission to intervene where EROs are not performing to a sufficiently high standard.

However, interestingly, the Electoral Commission has now issued a statement saying that it feels that it does not need these further powers. We originally tabled this amendment in response to the Electoral Commission’s concerns, but it now says:

“In instances where the Commission has concerns about ERO performance, following a recommendation from the Commission, the Secretary of State or Lord President of the Council has a ‘power of direction’ to require EROs to comply with any general or special directions in relation to the discharge of their functions. To date this system has worked well and we therefore see no need for this to change when IER is introduced”.

The Electoral Commission says it is satisfied with this provided that it receives assurance from the Government that they are prepared to use the existing power of direction in cases where EROs are not fulfilling their duty to take all necessary steps to maintain the electoral register.

It is not a satisfactory position that the Electoral Commission not taking additional powers depends upon a Minister intervening in relation to what particular EROs are doing. It is a slower process; it depends upon the good will of politicians. Is it not better for it to be dealt with by a body that is independent of any political party? I would be interested to hear the Government’s views on these issues.

[Lord Gardiner of Kimble]

My Lords, first, I thank my noble friend for raising the issue of the general duty on registration officers.

The amendments to the 1983 Act set out in the Bill strengthen the existing duties on a registration officer while taking into account the requirements of the new registration system. The amendments to Sections 9 and 9A of the 1983 Act made by the Bill do not lower the standards that registration officers are expected to meet. Instead, they set out explicitly important requirements that are not expressly stated in legislation at present.

The qualification of “reasonably practicable” applies to the standard of completeness and accuracy of the register that must be reached—it must be as complete and accurate as is reasonably practicable. This is a high standard. To set it any higher would be to ask registration officers to achieve unreasonable or impracticable levels, which would not be right. It is simply not possible for registration officers to have perfectly up-to-date registers at all times and it would not be reasonable to introduce a requirement on registration officers which they would not be able to meet.

The Electoral Commission accepts that the changes proposed to Section 9A do not represent a watering down of the duties of electoral registration officers, but has asked the Government to make clear their intention behind the rewording of Section 9A. To offer that reassurance I will quote Mr David Heath from another place when he said that,

“far from diluting the requirements on registration officers, under the new registration system we are strengthening the existing duties”.—[Official Report, Commons, 27/6/12; col. 316.]

The change we are making does not weaken the duty in Section 9A. We have set out in draft regulations our initial proposals for what registration officers must do to encourage an application to register to vote. This includes as a minimum the sending of an invitation, two reminders, and the sending of a canvasser to encourage an application.

I believe that Amendment 39A has the same desired effect as Amendment 39. In addition, however, it would have the effect of removing the explicit duty to seek to include in the register those who are eligible to vote but are not currently on the register. Amendment 39C would give the Electoral Commission powers of intervention where they judge that registration officers have not taken all of the necessary steps outlined under Section 9A. However, it is not clear from the amendment what form this intervention would take.

We believe that the fulfilment of the requirements set out in Section 9A plays a vital role in improving the completeness and accuracy of our electoral registers, which we are committed to achieving; however, giving the Electoral Commission powers to intervene where this is not being done would be a significant change in its role.

The Commission already has powers to set and monitor performance standards for electoral services, against which electoral registration officers’ performance is measured. A failure to meet those standards could indicate a potential failure to meet the duty set out in Section 9A of the 1983 Act. In addition, Ministers may require registration officers to comply with directions relating to discharging their functions. It is also an offence for them to breach their official duty without good cause. To date this system has worked well and we see no need to change this or for any specific provision to be made relating to the discharge of Section 9A duties. For these reasons, I question whether the amendment is necessary in ensuring that Section 9A duties are fulfilled. For those reasons I ask my noble friend to withdraw his amendment.

I shall also speak to Amendments 43 and 45, which are minor and technical amendments. As a consequence of the changes to the canvass process under IER to be made by the Bill, we need to remove the reference to “the relevant date” from Section 49(6)(a) of the 1983 Act. That date is usually 15 October, which is currently the date of residence for the purposes of the annual canvass. Under IER the canvass will not be tied to a date. It is for those reasons that the Government will move Amendments 43 and 45.

[Lord Rennard]

My Lords, I thank the Minister for his assurances that there is no intention whatever to weaken the duties of returning officers in relation to the registration process. I hope that any information that emanates from the Electoral Commission in due course will emphasise that fact to returning officers. On the basis of his reassurances, I beg leave to withdraw Amendment 39.

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[Lord Gardiner of Kimble]

My Lords, Amendment 39B would require electoral registration officers to report to the police any instances where they suspect that individuals have committed offences relating to electoral fraud when submitting a registration or absent vote application. While the spirit behind the amendment is commendable, the Government do not consider it to be necessary to make this a statutory requirement. I should like to explain the reasons for that.

The need for EROs to refer to the police any suspicions they have on registration or postal vote applications which they receive is already very clear in the guidance issued to them by the Electoral Commission. The Electoral Commission’s Managing Electoral Registration in Great Britain guidance clearly states:

“Any issues concerning the integrity of the registration process should be reported”—

by the ERO—

“to the police immediately”.

In addition to this, the Electoral Commission has worked with the Association of Chief Police Officers to produce guidance for EROs, returning officers and police officers on identifying and responding to allegations of electoral fraud around the registration and postal voting process. In exercising its powers under Section 9A of the Political Parties, Elections and Referendums Act 2000, the Electoral Commission has also set a specific performance standard on integrity which EROs need to meet in maintaining the integrity of registration and postal vote applications. In order to meet this performance standard, EROs are required to establish and maintain contact with their local police with a single point of contact and to ensure that any suspicions arising from registration and postal voting applications are reported to them immediately.

In view of the guidance, performance standards and the reports from the Electoral Commission which confirm that the overwhelming majority of EROs already take the appropriate action to report any suspicions they have in relation to fraudulent registration and postal voting applications to the police, we do not consider that this amendment will have any major impact or lead to any improvements on the ground. Although it is commendable, it is for those reasons that I ask the noble and learned Lord to withdraw his amendment.

[Lord Falconer of Thoroton]

My Lords, I am grateful to the Minister for his reply. I beg leave to withdraw the amendment.

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Moved by

[Lord Gardiner of Kimble]

40: Schedule 4, page 22, line 20, at end insert—
“(b) omit paragraph (c) and the “or” before it.”

[Lord Gardiner of Kimble]

My Lords, I shall speak also to Amendments 44 and 46. These amendments are all technical and consequential. They relate to anonymous entries in the register. I should make it clear that the move to individual electoral registration will not change the right of individuals who may be at risk if their details are published in the electoral register to be registered as anonymous entries. However, the procedure relating to anonymous entries is being modified slightly as a result of individual electoral registration. These amendments are all consequential on these modifications and other IER changes. I beg to move.

Amendment 40 agreed.

Amendment 41

Moved by

[Lord Gardiner of Kimble]

41: Schedule 4, page 23, line 15, leave out “In section 13(5)(b),” and insert—
“(1) Section 13 (publication of registers) is amended as follows.
(2) In subsection (2)(b), after “13A(3)” insert “or (3A)”.
(3) In subsection (5)(b),”

[Lord Gardiner of Kimble]

My Lords, I shall speak also to Amendment 42. These are minor amendments and are intended to ensure that as many eligible applicants as possible are registered by removing a restriction on rolling registration applications being added to the revised register. Removing this restriction would not affect the entitlement of people to object to an application for registration or the registration officer’s duty to determine objections. Rolling registration was introduced by the Representation of the People Act 2000, the provisions of which set up a 14-day period prior to the publication of a monthly update or a revised register during which successful rolling registration applications may not be added.

Under the household registration system, this 14-day limit does not cause any great problems as different rules apply to the compilation of registers used for elections, and the revised register, which is usually published on 1 December, is published following the canvass period. Because a returned household canvass is a de facto application to register, few rolling registration applications are currently made in the canvass period. However, under IER, all applications to register will be akin to rolling registration applications. Having a 14-day period when these cannot be added to the revised register could cause a problem and potentially harm the completeness of the register. The amendments remove the 14-day limit in relation to the publication of the revised register.

As I said, these are minor amendments, but they are supported by the Electoral Commission, which said that it did not believe that there was any significant rationale for retaining the current 14-day period. Indeed, the Association of Electoral Administrators did not feel that there was any administrative reason to keep the limit. For those reasons, I beg to move.

[Lord Falconer of Thoroton]

My Lords, the amendment sounds reasonable. Am I right in saying that there will now be no time limit before publication in respect of which registration can take place, meaning that, if you make your application the day before the register is published, it will be included in the register? If you remove the 14-day limit, that appears to be the effect. Perhaps I have misunderstood the amendment, but that seems to be the effect.

[Lord Gardiner of Kimble]

My Lords, I think that I am getting into slightly technical territory, but my understanding is that the provision is designed so that, about five days before the register is concluded, as many people as possible are able to be on the register. Some assistance may be coming from the Box, which is always very helpful. The answer that I have is that there is still a five-day objection period, which I think gives the provision a practical effect.

[Lord Falconer of Thoroton]

That is incredibly helpful. I am more than happy to see the 14 days go. The consequence is that, up to five days before publication, you will get on to the next published register; if the application is within those five days, you will be on the register that is published after the one that is just about to be published.

[Lord Gardiner of Kimble]

I am very happy to confirm to the noble and learned Lord that that is the case.

Amendment 41 agreed.

Moved by

[Lord Gardiner of Kimble]

42: Schedule 4, page 23, line 23, at end insert—
“( ) After subsection (3) insert—
“(3A) Subsection (2)(a)(ii) also does not require a registration officer in Great Britain to issue a notice under subsection (2) in a case where the month which follows that in which the relevant time falls is the month containing the date on which a revised version of the register is next due to be published in accordance with section 13(1)(a); and in such a case the alteration in question shall be made in that revised version of the register.””

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Moved by

[Lord Gardiner of Kimble]

44A: Schedule 4, page 24, line 26, leave out “must request or provide” and insert “may or must require persons to give by virtue of regulations under paragraph 1(2), or must provide to persons,”

[Lord Gardiner of Kimble]

My Lords, this is a minor and technical amendment to the Bill. It ensures that there is no ambiguity over the continued application under individual electoral registration of the existing criminal offence relating to non-disclosure of information in response to the annual canvass or providing false information in the response.

The amendment maintains our declared policy of keeping the criminal offence alongside the new civil penalty. The criminal offence of non-disclosure or providing false information is an important part of electoral registration, giving registration officers the capacity to offer a warning on the canvass form and to insist that it is duly completed and returned.

The civil penalty is an additional tool for registration officers as they encourage individuals to register, but the criminal offence is still necessary to ensure that they receive as much information as possible in response to the annual canvass so that residents may be retained on the register or invited to make an individual application.

This is a technical amendment to paragraph 1B of Schedule 2 to the Representation of the People Act 1983, which is inserted by the Bill. It creates a link to paragraph 1 of that schedule, on the requirement to give information, which contains the link to the offence in paragraph 13. I beg to move.

[Lord Falconer of Thoroton]

I feel sorry for the Minister because this is rather a complicated amendment. It was presented as being intended to preserve the criminal offence alongside the civil penalty. My reading of the amendment, which amends an amendment to another Act of Parliament, is that, instead of referring to information that a registration officer “must request or provide”, it refers to information that they,

“may or must require persons to give by virtue of regulations under paragraph 1(2), or must provide to persons”,

when conducting a canvass in Great Britain. I do not read Amendment 44A as preserving a criminal offence; I see it as changing the terms of the change that was introduced by the amendment to the other Act in this Act. Am I right and, if so, what is the effect of Amendment 44A? I apologise for asking such a complicated question but it is a rather complicated provision.

[Lord Gardiner of Kimble]

I understand that the key phrase in the amendment is the reference back to paragraph 1, but its purpose and effect is that there will be a criminal offence relating to non-disclosure of information on the annual canvass, as there is under the current household registration system. This relates to not providing information or providing false information when requested by an ERO. The criminal penalty can be used by EROs to ensure that the annual canvass form is completed and returned. However, the offence will remain in addition to the civil penalty being introduced under IER, which allows registration officers to impose the penalty where an individual fails to apply to register when required to do so. The criminal offence is more severe because it aims to prevent the potential disenfranchisement of others through the canvass whereas the civil penalty relates to an individual’s application. That is the purpose and effect of the amendment. I can go into further technical detail but perhaps I may clarify the point to the noble and learned Lord more fully when I have taken further advice. Having looked at the technical detail, which involves so much explanation of paragraphs, sections and subsections, I think that I would be in difficulties, and I suspect that other noble Lords might be also.

[Lord Falconer of Thoroton]

I am perfectly content with that answer. Perhaps the Minister could have somebody write a little letter about it, because I do not think that it is at the heart of the Bill. It is my fault for not quite understanding the effect of the new amendment. If it were possible to write a letter in relation to it, I am sure that it would be no problem, but it would mean that, by the time we got to Report, we would know where we stood. I apologise for not grasping it.

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Moved by

[Lord Gardiner of Kimble]

45: Schedule 4, page 25, line 24, at end insert—
“Representation of the People Act 2000 (c. 2)In Schedule 1 to the Representation of the People Act 2000 (registration: amendments of Representation of the People Act 1983), omit paragraph 12(3) and (4).”

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[Lord Falconer of Thoroton]

One would hope so. I do not know how long the transition is going to take. It is clear from the way that everybody has spoken that probably in the first publication of the register where IER is compulsory—1 December 2015—it will not be complete. I have no idea how long it will go on after that, therefore at the moment I am not minded to put in a terminus date. At this stage, I cannot see any objection to the principle. This may surprise you as I am not intending to push this to a vote, but if the principle were accepted—which I hope it will be—then I think the right thing to do would be to talk to the Government to work out the best way to craft the detail.

[Lord Gardiner of Kimble]

I am most grateful to the noble and learned Lord for his amendment requiring an annual report to Parliament on the funding allocated to local authorities. I am sorry to disappoint the noble and learned Lord, but as the then Minister for Political and Constitutional Reform announced during this Bill’s Second Reading debate in the other place, we will provide local authorities in England and Wales with grants under Section 31 of the Local Government Act 2003 to pay their net costs for the transition to individual registration in addition to the current costs of running the annual canvass process which will continue to be met through the formula grant.

The Government wrote to local authorities over the summer seeking views on the proposed payment method for the allocation of non-ring-fenced Section 31 grant and the proposed formula which will be taken into account in making allocations. The Minister for Political and Constitutional Reform then wrote to local authorities in December 2012 setting out how the final funding approach, including the funding formulae, will work. The grants paid by the Government to each local authority during the transition will be a matter of public record, and the progress made by local authorities towards implementation of individual registration will be scrutinised by the Electoral Commission as part of its performance standards regime and will also be a matter of public record.

Spending decisions are ultimately a matter for local authorities. However local authorities are required by Section 54 of the Representation of the People Act 1983 to pay the expenses of a registration officer properly incurred in the performance of their functions. Paragraph 16 of Schedule 4 to the Bill ensures that this requirement extends to the registration officer’s duties in respect of the transition to the new system.

I am sorry to disappoint the noble and learned Lord, but it is for those reasons that it is felt that the amendment is not necessary, and I therefore ask him to withdraw his amendment.

[Lord Falconer of Thoroton]

The effect of my amendment would be that the report to Parliament annually, within two months of the end of the financial year, would simply be on what money was made available which the local authorities could use to meet the costs of the transition and what safeguards have been put in place to make sure the money had been spent on the specified task. It does not, in fact, require that the Government have to ensure that they do. It is a means of identifying what they intended and what steps they took to see whether it happened. With the greatest of respect to the Minister, I cannot see in any of the reasons that he gave why that is not quite a good thing to do which causes no problems for central government and does not interfere with the fact that it is ultimately for local authorities to make the decision about how they spend the overall grant they have. All that is being required here is that central government do the best it can in order to ensure that there is enough money for the transition without in any way offending the constitutional position.

Despite the Minister’s excellent help on previous amendments, I fear we may be hearing about this one again. I beg leave to withdraw the amendment.