Electoral Registration and Administration Bill

Lord Gardiner of Kimble Excerpts

Monday 29th October 2012 Lords Chamber

[Lord Gardiner of Kimble]

My Lords, having come to this debate and this Bill recently, I have found this evening very thought-provoking. I thank the noble Baroness and noble Lords for all their contributions.

The amendments in this group fall largely into two groups—those relating to the conduct of the annual canvass and those relating to the powers in the Bill as to the abolition, amendment or reinstatement of the canvass. Amendment 12 raises the question of when the canvass should take place. One effect of the Bill is the removal of the current requirement for the canvass to collect information about who is a resident at an address on 15 October. This would potentially allow registration officers to carry out a canvass at a time of their choosing, as long as the revised register is published by 1 December.

The reference date is not the only factor that drives registration officers to carry out the canvass in the autumn. Binding registration officers just to October is unduly restrictive, and I was interested in the comments made by my noble friend Lord Rennard and the noble Lord, Lord Martin. This issue has also been discussed with an expert panel of registration officers and electoral administrators who welcomed the removal of the reference date, which is seen to be confusing by many members of the public. For that reason, I do not see the need to include a reference date or a specified canvass period in the legislation.

Amendments 13 and 14 are more specific and relate to the duties of electoral registration officers in carrying out the canvass. I would question the necessity to set out in primary legislation, as Amendment 13 seeks to do, the precise categories of property that a registration officer must contact to comply with the requirement to canvass their area, as their duties under Section 9(1) of the 1983 Act, the Electoral Commission’s performance standards and our proposed draft secondary legislation set out the obligation to carry out a canvass. A difficulty with specifying those levels of detail in primary legislation is that it could inadvertently narrow the scope of what EROs are expected to do and make it difficult to change.

Similarly, Amendment 14 seeks to impose a requirement to carry out house-to-house inquiries. Indeed, my noble friend Lord Rennard referred to these matters. Section 9A of the Representation of the People Act 1983 already requires registration officers to take “all steps … necessary” to maintain the electoral register. This specifically includes making house-to-house inquiries on “one or more occasions”. This will remain in the 1983 Act, and it is therefore unnecessary to make the suggested amendment to the Bill. As well as carrying out house-to-house inquiries to obtain information when no canvass form has been received, or to supplement this information, the Bill also enables registration officers to make use of house-to-house inquiries before sending out canvass forms. Indeed, that proposal has been much welcomed by many registration officers.

The next set of amendments relate to the powers set out in the Bill allowing the Government to abolish or amend the annual canvass, but also to reinstate it, if it were to be abolished. Amendment 30 would remove the provision enabling the Minister by order to abolish the duty to conduct an annual canvass. If I may, before addressing this amendment I would like to set out the reason behind the provision to amend or abolish the annual canvass by order in Clause 6. This power is included in the Bill to allow provision to be made in future to help us build a modern electoral registration system, potentially using methods other than a traditional household canvass. However, I assure the noble Baroness that the Government would take the step of abolishing the annual canvass, whether in whole or in part, only if there was another or more effective way identified. In this situation the role of the annual canvass in the upkeep of the electoral register would be less significant than under the scheme set out in the Bill. Only when the annual canvass was less pivotal might it be amended or abolished. Indeed, this diminished significance of the annual canvass would then make it reasonable to use secondary legislation to make this change.

Clause 7 requires any proposal to amend or abolish the annual canvass brought forward under Clause 6 to be subject to rigorous scrutiny and safeguards. Indeed, I remind noble Lords that Clause 7 was in the Bill as from introduction. It sets out that the Minister bringing forward the order must ask the Electoral Commission to prepare a report assessing the extent to which the registration objectives have been met and the merits of alternative ways of achieving those objectives. Then, in turn, the Electoral Commission would be required to publish its report no fewer than three months after being asked to do so and the Minister would then be required to present the report to Parliament alongside the draft order subject to affirmative resolution of both Houses. Clause 6 also provides for the reinstatement of the annual canvass in the event of the abolition resulting in unintended consequences. Our aim with these provisions is to create a system that is flexible and able to respond to advances in technology, but one that has also to be transparent and has the right amount of scrutiny and safeguards built into it.

Amendments 31 and 38 also relate to the Government’s power to amend or abolish the annual canvass. They would mean that if an order was laid to modify or abolish the annual canvass a draft of the order would need to be laid before Parliament accompanied by a ministerial recommendation of the parliamentary procedure—negative, affirmative or super-affirmative—which the Minister recommends should apply. In responding to these amendments, I draw the noble Baroness’s attention to Clause 10(2) of the Bill which already provides that any order made under Part 1 of this legislation is subject to the affirmative resolution procedure. It may be made only if a draft of the order is approved by a resolution of both Houses. As the Bill already provides that an affirmative resolution is necessary to make any order under Part 1, the question to consider is what additional safeguards this amendment would introduce. The super-affirmative procedure is rarely used and is appropriate only where the extra scrutiny that it enables is necessary. One of the main features of the super-affirmative procedure is the inclusion of a consultation stage before each House is asked to approve the proposal. However, in the case of the provisions in Clause 6, there is already a two-stage process of a report from the Electoral Commission followed by the normal affirmative procedure in addition to the provisions for a report by the Electoral Commission set out in Clause 7. I believe that this negates the need for a consultation ahead of the laying of the affirmative order which would be required by the super-affirmative procedure.

Amendment 32 seeks to remove the power to reinstate the annual canvass if it has already been abolished. The power to reinstate the canvass if it has been abolished by an order made under Clause 6 is an important safeguard for the system. This provision ensures, for example, that in circumstances where the abolition of the canvass had an unexpected detrimental effect on the completeness of the register, the canvass could be quickly reinstated to reverse this trend.

Amendment 33 relates to orders amending or abolishing the annual canvass. The Government have no current plans to make any such order, but it is important that the provision for this to happen enables it to happen in the right manner. As it stands, Clause 6(5) provides that such an order may also include provision to create further secondary legislation. We would anticipate that an order under subsection (2) would make the main changes to the canvass, including amendments to the existing provisions of the 1983 Act and the main features of the alternative system. We would not, however, expect the detailed procedures to be provided for in this order. Instead, we would expect the order to transfer a power to make separate regulations containing this detail, enabling this to be included in the regulations prescribing other details of the registration system. Those separate regulations would themselves need to be subject to the affirmative resolution procedure. So this is not about avoiding scrutiny but about structuring the legislation in the most appropriate manner.

Amendments 34 and 35 relate to the Electoral Commission’s report that will precede the abolition or amendment of the annual canvass. Amendment 34 would mean that the Electoral Commission’s report on any future proposals to amend or abolish the annual canvass must be laid before Parliament and not given to the Minister. Clause 7(6) indeed requires the Minister, when laying a draft order under Clause 6—for example, an order amending or abolishing the annual canvass—to lay at the same time a report by the Electoral Commission about the proposal. That report must assess the extent to which registration officers are currently able to ascertain those unregistered people who are entitled to be registered, those people who are registered but not entitled to be, the extent to which the proposals in the order would meet this objective, and the merits of alternative ways of meeting the objective. Amendment 34 proposes that rather than giving the report to the Minister to be laid with the draft order, the Electoral Commission should itself lay the report before Parliament. While the commission’s report will undoubtedly be important for the consideration of any draft order, it will also be an important tool in determining whether the draft order should indeed be laid in the first place. The laying of this order will be at ministerial discretion. Unless the draft order is laid, the Electoral Commission’s report is not needed to assist parliamentary consideration of it. Therefore, in the Government’s view, this amendment is not necessary. In addition, once the commission has given the report to the Minister, we would expect the report to be published on the commission’s website and it would therefore be in the public domain for parliamentarians to read, if they wished to do so.

Amendment 35 would require that instead of the Electoral Commission’s report being provided by a date to be specified, it would have to be provided within three to five months of the commission being consulted. I agree that while it is important to allow the commission sufficient time to produce the report, it is also important that the report is produced in a timely fashion and does not delay important legislation. Indeed, from our position today, I cannot envisage circumstances in which a period exceeding five months would be required.

Amendment 37 raises the important and related issue of the role of the Electoral Commission in relation to piloting proposed changes to the annual canvass. Pilot schemes can be introduced to test whether it would be desirable to amend or abolish the annual canvass as a means of achieving the canvassing aims set out in Clause 4—that is, finding those people who are not registered but entitled to be, and those who are registered but not entitled to be.

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[Lord Martin of Springburn]

Perhaps I may add to that. I am well aware of what the noble Lord, Lord Tyler, is saying. I suggested that we should have the informal ad hoc committee because I felt that the commission was not in touch with the real world, where people met electors. The Government had a bar on people who were formerly election agents—that is, professional election agents—but I felt that that was ridiculous, because the professional election agents had the skill and expertise, and they knew exactly what was realistic and unrealistic. However, the point I am making is that we are putting more and more responsibility on the Electoral Commission, and there should be strong liaison between the Government and the Electoral Commission to see that the commission is up to the job that it has been given.

[Lord Gardiner of Kimble]

My Lords, I am very conscious of the experience of both my noble friend and the noble Lord, Lord Martin, on these matters. I agree entirely that there needs to be dialogue between the Electoral Commission and parliamentarians so that this is very much a live issue.

I fully appreciate that I have taken some time over the 11 amendments in this group. Given the grounds that I have set out, it remains for me to ask the noble Baroness whether she is in a position to withdraw her amendment.

[Baroness Hayter of Kentish Town]

My Lords, I thank the Minister for that response, but I am not happy. There are three elements. The first is whether the canvass should take place in October. I could live with by October, but my concern is that if it is in the spring it will be too late for a May election. The important thing, therefore, is to get it done by that stage so that there is time to work on it.

The main issue is the annual canvass and the power to abolish it, and all the rest is a way of making it harder to abolish it without the proper say-so of Parliament. I thank the noble Lords, Lord Rennard and Lord Martin, for their support for the canvass. I remain suspicious, particularly of the words of the noble Lord, Lord Gardiner, that “The Government would do this only if …”. That says it all. It would be the Government who do it. As for affirmative resolutions, we know that if you are in government you have a majority in the other House, and we in this House, quite rightly, do not vote against such instruments. Basically, it is a power in the hands of the Government. The whole Committee—there is not much of it at this moment—would be concerned about the Government having the power to abolish the annual canvass.

To some extent, the Minister has admitted that. He talked about the ability to put it back and re-establish it if there were problems and a safeguard was needed. That is a risk too far. The amendments seek to make it harder for the Government to abolish it. Before we come back at Report stage I hope that the Government will think about the need to keep the annual canvass in the Bill without just giving it to a Government to abolish. We will no doubt return to this, but, for the moment, I beg leave to withdraw the amendment.