Electoral Registration and Administration Bill

Lord Norton of Louth Excerpts

Wednesday 23rd January 2013 Lords Chamber

[Lord Tyler]

My Lords, I will not detain the House long as I made our position clear in Committee and it has not changed. As I said then, we believe that my noble friend Lord Lexden has hit on a very interesting and important issue about nationality and representation. There is clearly a strong case for some rationalisation and, indeed, for a careful look at the way in which our EU partners handle this issue, as was again said today. At the same time, we must note that the majority of them have a very different electoral system from our own. Here in the UK, we have a system of single-Member constituencies with a special link between an MP and his or her constituents. It is irrational to have people who used to live in my old constituency in north Cornwall, for example, still on the electoral roll 15 years or more after they have left for possibly sunnier climes.

Let me clear up any misunderstanding: every UK election, with the notable exception of European parliamentary elections, is in a sense a local election. Voters in a particular locality decide which local representative would in their judgment best represent their interests and those of that specific locality. It is also true that many local issues, from development threats in that locality to the level of council tax more generally, can be major factors even in a UK parliamentary election. For those who have left that locality 15 or more years ago to have a potentially decisive voice in such an election is illogical. I still remember the occasion when I was elected with a majority of nine. For all I know, that majority of nine came from many thousands of miles away and had no direct interest in that locality and that local parliamentary election.

Last week my noble friend Lord Deben, who is not in his usual place this afternoon, attacked me on this issue in a splendidly enjoyable diatribe. I make it clear: I do not defend or, indeed, reject the single-Member constituency that we have at present in the UK, but it is a fact of political life. Therefore, anything we do on this issue has to take that into the reckoning. If he or anybody else is now expecting a change to a multi-Member or list electoral system for the House of Commons, I am as surprised as I am delighted. However, I do not think that he is.

In the absence of any such reform, we urge my noble friend Lord Lexden to think again about his strategy. If he is to address the anomalies that he has rightly identified, he must take up the issue of an additional constituency for overseas voters. Several contributors to last week’s debate in Committee, including my noble friend Lord Lexden, referred to the French arrangement for overseas voters. Indeed, again, he made very important reference to the experience of French overseas voters. However, the significant point is that they have a separate constituency; they do not interfere with the individual constituencies in mainland France. In those circumstances, we believe that this amendment puts the cart before the horse. We believe that the creation of a separate constituency on the French model—or, indeed, constituencies, if the numbers justify something beyond one constituency—would be a much more appropriate way to make this injustice less of a problem in future. Surely that is the right and only way for the interests of former UK residents to be represented without diluting those of the people who still live in this country.

[Lord Norton of Louth]

My Lords, I support the amendment moved so ably by my noble friend Lord Lexden. It is a novel amendment but a modest one. In Committee, there were essentially two objections to the proposal to extend the 15-year limit on British nationals who live abroad having the vote. A third objection was to the mechanism proposed by my noble friend, which is again before us today.

One objection to extending the 15-year limit was that citizens who have retired to live abroad and enjoy the sunshine of foreign climes had effectively fled the United Kingdom and therefore should not be able to vote—certainly not for any great length of time. My noble friend Lord Tyler referred in Committee to the fact that some people may deem them to have deserted these shores. That is to misunderstand the situation of British nationals living abroad. Most emigrants from this country live abroad for work-related purposes. Some will be moving around the globe for their companies, which may well be UK companies. The fact of living abroad for some years is no proof of leaving the UK on a permanent basis.

My noble friend Lord Tyler raised a second objection, to which he referred again today. He argued that citizens living abroad do not have a clear constituency link, and he queried how an MP could represent,

“people who live perhaps thousands of miles away in a very different economic and social context”.—[Official Report, 14/1/13; col. 481.]

Well, I presume that they can do it in the same way in which they currently represent those who live abroad but have not yet done so for 15 years and are registered to vote. It is perhaps also worth reminding ourselves that the MEPs for the south-west of England also represent Gibraltar, where people live some way away in a different economic and social context.

The other objection was raised by my noble friend Lord Gardiner of Kimble in respect of this particular amendment, on the grounds that it would be unusual to make such a change in secondary legislation. I note that he said “unusual” and not “unique”. In any event, what is involved here is not a new right but an extension of an existing right. Far greater changes affecting individuals are made through secondary legislation than is being envisaged here. What the amendment does is provide some flexibility. In Committee, my noble friend Lord Gardiner said that the question of extending the time limit,

“remains under consideration within government”.

The amendment provides the means to move forward, should that consideration result in recognition that the time limit should be extended.

The grounds for extending the time limit were made in Committee by my noble friend Lord Lexden. As I stressed in that debate, we need to recognise the contribution made to the United Kingdom by citizens living abroad. They are a major source of soft power for the United Kingdom. My noble friend Lord Gardiner acknowledged,

“the continuing loyalty to the United Kingdom of so many who have lived and worked overseas for many years”.—[Official Report, 14/1/13; col. 489.]

We should look upon our citizens around the globe as a continuing asset and not as a body of people to be cast aside and treated as having deserted these shores. If they wish to demonstrate a continuing commitment to the United Kingdom, they should be enabled to do so.

My noble friend’s amendment provides the means for doing so but, at this stage, without commitment. It enables the Government to complete their consideration of the issue. I therefore commend the amendment to the House.

[Lord Campbell-Savours]

My Lords, I intervene only briefly to ask a question, because the noble Lord, Lord Tyler, quite rightly drew the House’s attention to the sensitivity in very marginal seats to votes coming in from abroad. I want to know what happens in conditions of fraud. We have an individual registration system and the suggestion is that we should extend the right to vote to those who have been overseas for more than 15 years. What happens if a fraud takes place? Where are those involved to be prosecuted? Can they be prosecuted? Are they to be extradited? Does this not raise all kinds of problems in terms of prosecution? Perhaps the Minister can give the answer.

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Moved by

[Lord Norton of Louth]

13: After Clause 22, insert the following new Clause—
“Opt-in to the edited version of the electoral register
(1) From 1 December 2013, the inclusion of the name of an elector on the edited version of the electoral register shall only take place when the elector has given permission for his name to be included.
(2) For the purpose of subsection (1), permission shall be deemed to have been given when the elector ticks a box on the electoral registration form indicating that he wishes to be so included.”

[Lord Norton of Louth]

My Lords, in Committee I raised the issue of the edited version of the electoral register. I return to it in this amendment because of the Government’s unsatisfactory response. The edited version of the electoral register engages important principles regarding personal data. The edited version is generated as a by-product—essentially a commercial by-product—of a citizen’s duty to supply personal data in order to be registered to vote.

I made the case in Committee for the edited register to be abolished. I had argued the case before and, in making the case in Committee, I was able to pray in aid the Electoral Commission, the Political and Constitutional Reform Committee of the House of Commons and the Association of Electoral Administrators. Each has argued the case for abolition. In Committee, I quoted an editorial of the Guardian in December 2011, which argued that the edited register,

“lingers on, a travesty of the democratic process that sullies the relationship between voters and state, and illustrates just how casually politicians think about democracy”.

In its briefing for Committee stage, the Electoral Commission contended that prohibiting the publishing of the edited version was,

“particularly important, given the need to maintain people’s confidence in the security of their personal details”.

In responding, my noble friend the Minister said that, on balance, the Government had decided to retain the edited register because of what was seen as a greater principle—that of commercial gain. There was no engagement with the argument beyond that. The Government’s stance would presumably justify reverting to the sale of the full register to any organisation that wished to purchase it.

However, given that the Government have decided in favour of retaining the edited register—and we will doubtless return to that issue in the future—I have decided to pursue the issue of the opt-out. In Committee, I argued the case for electors to opt in to the edited version of the register, rather than—as now—opt out. This is, to my mind, crucial in the use of personal data. If electors are to have their personal data sold to third parties, then they should have to give their consent to it being sold in this way. As I said in Committee, consent must be given rather than assumed. That need for consent is reinforced by the Minister’s reminder in Committee that under individual electoral registration, an individual’s choice—or rather, in many cases, assumptions made about an individual’s choice—will automatically be carried forward.

The Electoral Commission, in its briefing on today’s amendments, has made clear that it supports this amendment. It states:

“We believe that, if individuals are required by law to provide personal information for the purpose of electoral administration, they should be asked clearly if they also want their personal information to be sold. Their personal information should only be sold if they have explicitly given their consent”.

In Committee, the Minister’s line of argument was essentially that the situation had improved since the days when the full register could be sold—rather ignoring the circumstances leading to the creation of an edited register—and that the existing situation provided appropriate protection and control. That was asserted rather than justified. Where personal data are concerned, we need to apply a higher threshold than that which is being applied. The present arrangements rest on assumptions about electors’ wishes rather than their explicit consent and what appears to be implicitly the view that changing to an opt-in provision would be too much trouble. Perhaps in reply my noble friend will explain what precisely the obstacle is to moving to an opt-in provision. Surely the principle of consent must outweigh the claim of convenience.

I will raise a general point deriving from this amendment and from others moved in Committee, not only by me but by other noble Lords. The Government appeared unwilling to engage with points of principle relating to the franchise and to the protection of personal data. Their response was couched essentially in terms of convenience and practicality. This bears out the concern expressed by the Constitution Committee in its report of the previous Session on the process of constitutional change. More than a decade ago, when I chaired it, the committee expressed concern at the lack of a culture within government of dealing with constitutional issues. As the committee noted in its report of last Session:

“The evidence we have received points to this lack of coherence remaining a serious problem”.

The Government need to demonstrate that they are able to engage in debate about the principles underpinning our constitution and the way in which we conduct elections. My amendment raises important questions that take us beyond matters of administrative convenience. If the Government are not willing to accept the amendment, they must give a compelling argument for their stance. We need to do whatever is necessary to protect personal data and the integrity of the registration process. I beg to move.

[Lord Tyler]

My Lords, as always, the noble Lord, Lord Norton of Louth, made a compelling case. However, it would be wrong to suggest that the current situation is in place not because of a very long, very careful, very extensive and very thoughtful process. The edited register is the result not just of some quick legal judgment but of a long political process, started by the previous Labour Administration.

The electoral register has been available for sale in one form or another since 1832. In 1999, Labour rightly recognised—before the register was challenged in the courts—that there was a case for changing the Victorian arrangements. In 1999 a Home Office working group recommended, first, that electors should be allowed to decide whether their personal details should be included in a register that was made commercially available and, secondly, that the full register should continue to be available to electoral users, while a licensing arrangement should be agreed to ensure that its use was restricted to electoral purposes only.

As far as I am aware, that recommendation was by broad agreement across the parties. The situation resulted in Section 9 of the Representation of the People Act 2000, which created the so-called “edited register”. It was only when the Government consulted on how to implement the new principle that they were challenged in court about the old system. In 2001, Brian Robertson from Pontefract won his case when the judge concluded that the compulsory disclosure to commercial organisations of data given for electoral purposes was in breach of the Data Protection Act and of the newly passed Human Rights Act. He won the legal point in court, but it appears that the political and moral point had already been acknowledged by the Labour Government in 1999, and here in Parliament in 2000. The edited register was finally implemented in regulations in 2002. The problem that the amendment before your Lordships seeks to solve is one that has already been dealt with in the 2000 Act and the 2002 regulations.

Your Lordships’ House is always rightly concerned about the unintended consequences of legislation that we scrutinise. We should be particularly alert to the unintended consequences of this amendment. The edited register does not just have a commercial purpose; it is also used by a great many charitable organisations. The suggestion from my noble friend that it was only commercial reasons that the government Front Bench advanced last week may or may not be true, but those reasons certainly are not my concern. My concern is that a large number of highly reputable, very public-spirited actions by very public-spirited organisations could be impeded by the removal of the edited register, or by it becoming ineffective. For example, the Salvation Army is a particular advocate for its retention. Each year it finds and reunites some 3,000 families by using the edited register. That is as much an issue of principle as of practice. The edited register underpins efforts to locate and connect organ donors—which, again, is very important—and even bone marrow donors.

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In view of all these important safeguards, I can see no reason for removing the current opt-out arrangements. I therefore thank the noble Lord for the debate but ask him to accept the Government’s assurances and to withdraw this amendment.

[Lord Norton of Louth]

My Lords, I am grateful to those who have contributed, and especially to the noble Lord, Lord Wills, for his support on this amendment. I do not regard the responses that I have heard as particularly satisfactory. The Minister’s objection appears to be that electors are not bright enough to understand the difference between an opt-in and an opt-out. However, we do not know whether citizens are making an informed decision because they are not making that opt-in choice. It is notable, as happened in Committee, that neither my noble friend Lord Tyler nor the Minister addressed the core issue of principle that I raised. The objection was really practical—who benefits from the edited register—rather than on the core point about the use of personal data, how they are protected and whether people make an informed choice. In many respects, the points made by my noble friend Lord Tyler bore out the point I was making.

The fundamental point is that we place stress on the protection of personal data. As my noble friend Lord Tyler said, we had long discussions leading up to the Act in 2000. I took part in those discussions and made the case that what we did then did not go far enough in terms of the protection of personal data. It is definitely something we need to pursue and return to. As far as I am concerned, the Government need to think again. As the noble Baroness, Lady O’Neill, and the noble Lord, Lord Wills, have said, the Government need to engage in serious research on this. It is not something that is going to go away. It is something we will doubtless come back to; indeed, we will come back to it.

On this occasion, we are clearly not making much progress but at least we have put down a marker. We will return to it because the protection of personal data is extraordinarily important. There is a core principle: people must give their consent. If the edited version is going to collapse because they do not give their consent, then I am sorry, but they must give it. In my view, electors are sufficiently intelligent to understand clear instructions on the point of an opt-in and opt-out. If the benefits are clearly explained then at least they can make an informed choice. However, it really must be up to electors rather than the Government making assumptions on their behalf. As I say, we will return to this, but in the mean time I beg leave to withdraw the amendment.

Amendment 13 withdrawn.