Electoral Registration and Administration Bill

Lord Rennard Excerpts

Monday 29th October 2012 Lords Chamber

I hope that my noble friend will give consideration to what the noble and learned Lord has suggested in looking at the role of the Electoral Commission. Perhaps my noble friend may be able to give us some reassurance as to what exactly the Government’s attitude is towards ensuring that we have a single, coherent, fair and properly co-ordinated electoral register throughout the United Kingdom for the purpose of carrying out all democratic procedures. I understand, of course, that referenda have been conducted on a different basis in the past, but this Bill, which is an attempt to try and pull this together, is somewhat remiss in not observing the elephant in the room—or, in this case, the elephant that is north of the Tweed.

[Lord Rennard]

My Lords, in the course of the Committee’s deliberations, it will become clear why I have considerable sympathy with what this group of amendments seeks to achieve. However, it is not right for the Electoral Commission itself to decide whether the arrangements for individual registration have been completed sufficiently well for the new system to be fully introduced and those registered only under the old system to be dropped from the voting registers.

A later amendment, Amendment 58, in my name and that of my noble friend Lord Tyler proposes to put this responsibility where it belongs—with Parliament. I accept, however, that many of us would in any event be properly guided by the Electoral Commission’s view as to the accuracy and completeness of the electoral register at the time. What is most clear to me is that we simply cannot proceed with elections and boundary reviews based only on the new individual election registration processes if the voting registers resulting from these new processes are significantly less complete than they are now. I discussed this very point with the former Minister, Mr Mark Harper, who said that he understood the difficulties of trying to conduct elections in 2016 if the voting registers were essentially “not fit for purpose” at that point.

There are of course important elections in 2016 to the Scottish Parliament, the Welsh Assembly and many English local authorities, as well as the next review of Westminster parliamentary constituencies, that should, under the terms of this Bill, be based on voting registers exclusively compiled on the basis of individual voter registration as at 1 December 2015. We cannot be sure at present that the new registration system will be working sufficiently by then. I should therefore be grateful if, later, the Minister could tell the Committee what consultation there has been with the Scottish Parliament, the Welsh Assembly and the Local Government Association over the major changes to electoral processes that are due to have come into effect in full by May 2016.

The debates on this Bill both in the other place and at Second Reading in your Lordships’ House have shown that the timing of full implementation is a matter of intense controversy.

[Lord Wigley]

Is the noble Lord aware of any consultation that there has been with the National Assembly for Wales on the implications of these changes for the next round of elections?

[Lord Rennard]

That is exactly my point. I am unaware of any consultation on this issue. I have asked a number of times by correspondence what consultation there may have been with the Scottish Parliament, the Welsh Assembly or the LGA, which is responsible for local elections. It seems that these bodies are unaware that, through the Bill, there will be significant changes to the electoral arrangements for those elections in May 2016. I believe that they should be aware of them and their view should be part of our consideration of this Bill.

As I said, the principle of IER is not really in dispute between the parties. All the parties agree the principle of it, and they agree that a household-based system is insecure, inadequate and leads to inaccuracy. However, the question is how you get from that system to a more secure and more rational alternative without losing from the register lots of people who are legitimately entitled to vote.

In that objective, the noble and learned Lord, Lord Falconer of Thoroton, the noble Lord, Lord Wallace of Saltaire, and I are all agreed, but the question is: what if we have not achieved our objective by 1 December 2015? I am convinced—and the Electoral Commission warns us of this—that there is a real possibility that we will not have achieved our objectives by 1 December 2015. Furthermore, I am convinced that the possibility of failure will be lessened if we do not in this Bill sign up to full implementation by then, irrespective of what progress is actually made on implementation in the next few years. In other words, a strong signal will be sent to government if they have to make this system work before it is fully implemented. I think that it would be invidious to expect the Electoral Commission, on its own, to push the “go” button on the final parts of the transition to IER. Therefore, to help to ensure that the stated objectives are met, I would prefer to see provision made to permit Parliament effectively to extend the carryover of voters from existing registers for a further period if, in the judgment of Parliament, the register is not in a sufficiently complete state on the basis of individual registrations alone. On that basis, we do not support Amendment 59, as we believe that there is a better, alternative approach, which we will set out when we reach a later group.

Turning briefly to Amendments 1 and 36, I should like to see the Electoral Commission reporting in this way, as it would inform our future debates. However, these reports themselves would be of little value if there were no possibility of Parliament providing for carryover to continue beyond 2015. Likewise, the capacity of Ministers to give guidance to electoral registration officers is of little value if the law says that electors on existing registers in their area should be removed from future registers, even if Parliament is not satisfied that we have been able to get a proper alternative registration system in place.

In due course, I hope that all concerned will accept that Parliament should have the final say on whether we are succeeding sufficiently well in our aims of having an accurate and complete electoral register before we exclude unnecessarily from the voting rolls perhaps several million people who will still be legitimately entitled to vote. We will not be able to make that judgment until we see how the new system is working.

[Baroness Jay of Paddington]

My Lords, like the noble Lord, Lord Forsyth, I regret that I was unable to take part on Second Reading, but since that debate the Constitution Committee, which I have the privilege of chairing, has issued its own report on the Bill. The report very much echoes some of the points that have just been made by the noble Lord, Lord Rennard. Overall, the Constitution Committee sought to impress on today’s Committee that the Government need to do everything possible to ensure that the completeness of the electoral register is matched by its accuracy. Concerns were raised—I know from reading the Second Reading debate—about the way in which the impact might fall heaviest on areas of urban population where, for example, many people in private rented accommodation—ethnic minority people, the young, and so on—might be unnecessarily excluded in the pursuit of the completeness, which might not necessarily reflect the accuracy and vice versa of the new register.

Although I take the point made by the noble and learned Lord, Lord Falconer of Thoroton, that there may have been special concerns and reasons in Northern Ireland, it is worth noting that the accuracy of the register fell by nearly 10% when individual registration was first introduced. The other major point that applies to this group of amendments—again I am echoing the noble Lord, Lord Rennard, and the concerns raised by the Constitution Committee—was about the necessity not to express many of these important concerns in guidance. The committee was concerned that there should be much greater parliamentary oversight of the introduction of the new register and that these matters should be put in regulations. We felt that for the Secretary of State to be able to determine requirements for exercising the right to vote without effective parliamentary oversight would indeed be constitutionally improper.

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[Lord Rennard]

There is a precise and important point that relates to this amendment. Will the Minister confirm that there is no provision in the Bill if we come to that conclusion that the system is less satisfactory than the present system? We know that the present system is far from satisfactory at about 82% complete. If under the new system IER is only 65% complete and there is no provision in the Bill to deal with that problem then, would it not be better to have some provision so that Parliament could look at the issue rather than just the Government deciding whether to start again with a new Act?

[Lord Wallace of Saltaire]

I think I need to take that away as well. If we were to go back to the old system, we would face the risk that we were retaining a much larger number of inaccurate and fraudulent entries in the system. Part of the reason for this Bill is to remove those fraudulent entries.

[Lord Rennard]

I do not wish to sound pedantic in relation to this issue, but it is not a question of going back to the old system rather than using the new one. The amendment that I have tabled for discussion later on is about whether the carryover from the old register needs to be continued for longer. It may be that if we have not succeeded with IER in the way that we hope, we might continue with the carryover for rather longer. That is a decision that Parliament should take at the appropriate time. It cannot take it during the passage of this Bill because we will not see how the data matching and data mining pilots have succeeded. We will not have that information, but we should have that information, and decide on it, before full implementation, by which I mean ending the carryover.

[Lord Wallace of Saltaire]

I recognise that we shall come back to some of the issues that have been raised when we come to debate the noble Lord’s Amendment 58, which we have almost been debating. The question of a further carryover at that point will unavoidably involve carrying over a large number of names about which we will all have less and less confidence because they will be people with whom electoral administrators have had no contact for the previous two years, in spite of considerable efforts—letters and attempts to canvass—to check their data. The Government would be very reluctant to carry over further than that, but I take the degree of concern that we hear around the Chamber seriously, and we will consider that further. Having offered these responses to a very wide-ranging debate, which has touched on almost everything from Scottish devolution to central registration and the authoritarian system of identity cards that the noble Lord, Lord Maxton, loves so much and a little on the computer revolution, I ask the noble and learned Lord to withdraw his amendment. We will continue to discuss many of these very important issues as we go through Committee and into Report.

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Moved by

[Lord Rennard]

4: Clause 2, page 2, line 32, after “description)” insert “, and must require a registration to an officer to impose a civil penalty (under section 9E of the Representation of the People Act 1983) where a person refuses to give information prescribed in regulations under this section”

[Lord Rennard]

My Lords, I wish to speak also to Amendments 5, 21 and 22 tabled in my name and that of my noble friend Lord Tyler. These amendments concern the detail of potential civil penalties. From the outset of the consultation on the draft Bill, I argued strongly that the existing legal requirement to fill in a registration form when invited to do so must continue under individual registration.

At the moment, electoral registration forms have something like an 80% response rate. Although that is not as high as we would like, it is a clear indication of the value of the statement on the form that there is a legal requirement to complete it and to return it. The civil penalty is a distinct arrangement for individual registration as opposed to the household inquiry form. In my view, the present criminal offence for failing to fill in a household form is proportionate in that failing to do so can prevent others from having the right to vote. That criminal offence will remain for the household inquiry forms under IER. The civil penalty associated with the follow-up individual registration process should be welcomed by electoral registration officers since it retains a serious sanction for them to use as a last resort when someone fails to fill in an individual registration form, but one that would be less cumbersome than having to initiate a full criminal prosecution.

I am very pleased that the Government have given us the benefit of seeing in draft form the regulations that will govern the operation of the civil penalty. Like all our amendments, Amendments 21 and 22 are there simply to encourage the Minister to look at whether the civil offence of not filling in the form when requested to do so by an electoral registration officer should be one of strict liability; in other words, can not knowing or not understanding that you were supposed to fill it in and return it be a proper defence? I am sceptical that anyone, after a registration officer has gone through all the steps set out in the draft regulations, could not know or understand that there is a legal requirement for them to register. A great deal of time and money could be wasted with people claiming that in fact they did not know or understand.

Ministers have talked about the level of the civil penalty being akin to a parking fine. I see that the noble and learned Lord, Lord Falconer of Thoroton, wishes to address that in his Amendments 23 and 29. I suggest that if it is to be like a parking fine, the idea that you can escape it by simply saying that you did not know you were responsible or you did not understand the rules is misplaced. As anyone who has received a parking fine—as I suspect many of us will have done at some point—will know, not understanding or not knowing that you have to pay it is not a defence. If we could all claim ignorance, many more of us would park illegally with impunity. I would be most grateful for the Minister’s comments on that point in his response to Amendments 21 and 22.

Amendment 5 deals with trying to ensure that people are indeed fully aware of the potential fine. If it is made a strict liability matter, as it probably should be, it is clearly even more important that people are informed at every opportunity of the risk of a fine if they do not register. To that end, we believe that this fact must be spelled out on the individual registration form itself. The draft regulations before the House suggest that the prospect of a penalty will be mentioned only in the “invitation to register”, which is effectively a covering letter to the form. Clearly, there is a risk that any covering letter could be set aside in haste and that an elector would not know of the legal requirement to register if it is not printed clearly on the form as well.

Finally, Amendment 4 seeks to equip electoral registration officers with a civil penalty as a means of obtaining necessary information from people when they request it. The Government’s present plans, as I understand them, are for the civil penalty to be imposed only if someone fails after several times of asking to return a form. However, there is a risk that someone may not provide enough information to permit the electoral registration officer to proceed with a registration. The Government’s position is that someone who has not provided enough information should not be subject to criminal prosecution under the present offence of failing to provide information when requested, yet the Bill and the draft regulations do not provide any way for the established alternative to criminal prosecution—the civil penalty—to be used instead. We believe that this needs to be addressed. In tabling all these amendments, we are seeking some reassurances for the record—to see in Hansard—that these issues will be dealt with and remedied in the final version of orders which come before this House.

Commenting briefly on Amendments 23 and 29, I do not personally think that it would be right to put the level of the penalty in the Bill. Clearly, it will need to change from time to time, just as the previous criminal penalty changed many times, from £20, I think, when it was first introduced in 1991 to £50, £400 and then to £1,000 over the years. Since this will change from time to time, I am not sure we should fix it now for ever at £100. However, if the process does work, people will ultimately find that it is simply easier to register than it is to pay any fine. All I would hope in this part of our deliberations is that the Committee will be told the latest government thinking on the level of penalty.

[Baroness Hayter of Kentish Town]

My Lords, I will address the two amendments in this group in my name and that of the noble and learned Lord, Lord Falconer. They concern the new civil penalty in the Bill, separate from the criminal offence, with, as we have heard, a possible penalty of £1,000. The civil penalty is for failure to co-operate with the electoral registration officer.

It remains a serious civic matter for people to be on the register, not least of course for jury service, for which nearly all are eligible, although not myself and my noble and learned friend Lord Falconer. Having been on the judicial bench—in a small way in my case, as a magistrate—we are I think are excluded from jury service. However, for the vast majority, of course this is the important source for identifying those who will serve on juries. Also, as democrats, as was mentioned by the noble Lord, Lord Dobbs, it is an important right that everyone who has the vote—for which many have fought in the past—is able to exercise that right. They need to be on the register because they need to be able to vote at the moment at which the mood so takes them. Often, that may be only days before an election, when they suddenly want to kick out whoever is there or, on the contrary, maintain the incumbent; or in some way influence the Government or the local authority. However, it is only if they have registered at the appropriate point, rather than a day or so before the election, that their right can be exercised. It is for this reason that it is so important for us to get this registration accurate and complete as early as possible.

We will hear—and already have heard—a lot about the importance of the register being complete, but it behoves all of us to play our part in that by responding to the request for information from an electoral registration officer, so that we can, if eligible, be correctly entered on to the register. The noble Lord, Lord Rennard, suggested it could perhaps be done by statutory instrument but the significance of Parliament writing it into law in the Bill and deciding the penalty for failure to comply with this part of our civic responsibility should not be underemphasised. For that reason, Amendment 29 would remove from Schedule 3 the power to determine the amount of the civil penalty by regulation and Amendment 23 would write into the Bill that it should be £100.

The exact amount perhaps need not detain us this afternoon, although it surely should be at the very least the same as a parking ticket, which some in the Committee may find themselves frequently having to pay. We can perhaps discuss the exact amount some other time but surely the principle is that Parliament, with this new system of registration, should fix the amount clearly in the Bill as an indication of the seriousness with which it views registration. That is the point that we want to make.

I shall speak to the amendment moved by the noble Lord, Lord Rennard, and his birthday compatriot the noble Lord, Lord Tyler. I also wish him a happy birthday, and I am sorry that the noble Baroness, Lady Gould, is not here to pass her wishes on; if she is watching, we can wish her a happy 80th birthday today. I will add emphasis to what has been said about those civil penalties and their use by registration officers. Particularly for the initial use of this brand-new system of registration, it will be important to impress on registration officers the significance and importance of the task that they are undertaking on our behalf, in part so that they communicate this effectively to all those with whom they will have dealings in obtaining and then registering relevant information. If individual electoral registration is to be the success that we all hope for, everyone must play their part. With the penalties being the only real weapon in the hands of those on whom we will depend to produce the register, we must give the EROs the backing to employ civil penalties if need be, and particularly the ability to have the threat of using them to the full.

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[Lord Wallace of Saltaire]

The noble Lord has been testing the difference between the Government’s approach and that of my noble friend Lord Rennard—who I think wants to be much fiercer on imposing civil penalties. The Government’s position is that the civil penalty is there as a backstop but should not be used to enforce compulsory registration. It should be very much a means of ensuring that forms are returned, not of insisting that everyone registers. That then takes us over into a different situation which, again, would be a change in the traditional, established relationship between the citizen and the state.

[Lord Rennard]

My Lords, as I said, the amendments are probing. We seek to continue a dialogue with the Government about the regulations to try to ensure that the system works as well as it should. As we said at the beginning of Committee, we are concerned about what we do if it does not work. Our major concern in considering the Bill is to try to ensure that it does, so the register is accurate and complete.

It is particularly valuable in the new process that the Electoral Commission will be designing the forms for registration, rather than individual registration officers. However, I would still like to press further with the Minister at some point that if those forms are in future to be centrally designed and the Government are laying out in regulations what is required to be on the form, it is important to state on the form the legal requirement that if you do not return this form you could be subject to civil penalty. Thinking in particular about the contribution from the noble Lord, Lord Martin, it is clear to me that legislatures at either end of the building are unaware of the existing rules. For example, at the moment, a young man of 20 in, say, Glasgow, is subject to a fine of up to £1,000 if he does not return the form, because if he lives on his own, he is the householder responsible.

[Lord Martin of Springburn]

I agree, but a young person of 20 acquiring accommodation and, in effect, creating a household, realises that he or she is taking on the responsibility of a householder. That is different from the carefree attitude that a young person of 18 would have in a house where there is mum and dad and the only worry they have is the price of getting out to the disco and making sure that they have a good time. I accept that once a person becomes a householder, they take on a different type of responsibility.

[Lord Rennard]

My Lords, as someone who became a householder at the age of 17 through my family circumstances, I understand the point about responsibility at a young age, but I do not accept that 18, 19 or 20 year-olds will necessarily be worse off under these arrangements. The fact is that they will no longer necessarily be subject to the £1,000 fine if they are on their own in a household; it will be a civil penalty of much lower value. We have talked about that being akin to a parking fine. The obvious point for the 18, 19 or 20 year-old is that all they have to do is to register to vote and then they will not be subject to the fine. That will be a simple and easy process. In future, they can do it online as well as by returning the form. That should not be difficult, and then they avoid the penalty.

My point is that the form should spell that out so that someone of any age or with any language as their first choice can easily see what are their obligations. Some direction is required on that. Looking further on at Amendment 24, tabled by the noble and learned Lord, Lord Falconer, and the noble Baroness, Lady Hayter, I am not sure that they have appreciated that those forms will in future be centrally designed by the Electoral Commission and that it will no longer be the job of the individual 400 or so electoral registration officers to design their own form. That is why I am so keen to ensure that this form follows the best possible practice and to continue discussion with government. We have seen how in Denbighshire, Hounslow and a number of other authorities, that the paperwork has been of great effect in persuading people that they should register, of greater effect than in some other places.

On that note, I am happy to withdraw my amendment.

Amendment 4 withdrawn.