Parliamentary Voting System and Constituencies Bill

Lord Wallace of Tankerness Excerpts

Tuesday 1st February 2011 Lords Chamber

[Lord Soley]

I referred to this matter in my earlier comments and I am encouraged to make a further comment partly by the speech made by my noble friend Lord Davies of Stamford but also by that made by the noble Lord, Lord Pannick. The problem here is paragraph 9(2) of Schedule 1. Paragraph 9(1) is very clear. It does not put the Electoral Commission in the firing line at all. If the noble and learned Lord, Lord Wallace, who I assume will answer this debate, heard anything of the previous debate he will have heard anxiety expressed in all speeches about the dangers of putting the Electoral Commission in a position where it takes the blame for not getting a balanced view of the two systems. As I have said on a number of occasions, it is very difficult to write a pamphlet describing the two systems without, in some way, being biased. My noble friend Lord Rooker has already touched on this.

There seem to be two ways of dealing with this problem. One is the way put forward by my noble friend on the Front Bench, which is to allow a political committee, the Speaker’s Committee, to be the lightning conductor. That committee would oversee the work that was done and would sign it off and if there were any flak from it, it would not go straight to the Electoral Commission. That is one way of dealing with it.

Perhaps I may suggest another way which came to me when I heard my noble friend Lord Davies speak—I noticed that the noble Lord, Lord Strathclyde, gave a fairly positive response to it—and that is the idea of the two campaigning groups being able to send out a leaflet, at public charge, so that it would be done rather like an election address. Looking back to paragraph 9, sub-paragraph (2) is problematic because that is where the Electoral Commission is required to make judgments about the wording used to describe the system. If we took out sub-paragraph (2)—I do not expect the Minister to respond to this straightaway but he might want to think about it—and simply left in sub-paragraph (1), then the Government could, in this Bill—I suspect that it would not need to go into the Bill—allow for the two campaigning groups to produce the leaflet as described by my noble friend Lord Davies with some sympathetic support from the noble Lord, Lord Strathclyde. That could be sent round, either with the Electoral Commission’s pamphlet or separately—I should have thought it would go with it—and in that way you take the responsibility of describing the two systems other than in a very basic sense which is required in paragraph 9(1), and put the requirement in paragraph 9(2) onto the two campaigning organisations.

I hope I am making myself clear. It is slightly complicated, but I am arguing that the two campaigns will know what they want to say for and against the two systems. If they produce their own leaflets and they are circulated with the pamphlet put out by the Electoral Commission, which they will do under paragraph 9(1), then it leaves the Electoral Commission in the rather tighter position of simply saying that there is a referendum, informing people about it, informing them how to vote, but not getting into the nitty-gritty of the pros and cons or the description of how the two systems might work. That would be left to the two campaigning organisations. That way you would take the Electoral Commission out of the firing line. The alternative way is to do as my noble friend has suggested from the Front Bench and leave the Speaker’s Committee to oversee the leaflet. It seems to me that either of those systems would act as a lightning conductor for the Electoral Commission and not put it in the firing line for what will almost certainly be seen as in some way a biased leaflet. I hope I have made myself clear. Perhaps the Minister would like to think about that.

[Lord Wallace of Tankerness]

I thank the noble Lord, Lord Bach, for moving the amendment. This important amendment follows on from the previous debate and I welcome the contribution of the noble Lord, Lord Soley. As the noble Lord, Lord Bach, said in introducing his amendment, it is appreciated that the Electoral Commission should take the lead role in providing useful factual information. We believe it plays an important role in providing information to the public and there is a governance framework for the Electoral Commission, under the Political Parties, Elections and Referendums Act, which we believe has operated effectively for 10 years. It is also important to recall in the context of this amendment that latterly the Electoral Commission has had the benefit of advice and involvement of representatives from the political parties: the noble Lord, Lord Kennedy of Southwark, for the Labour Party, the noble Baroness, Lady Browning, for the Conservative Party and Mr David Howarth, the former Member of Parliament for Cambridge who represents the Liberal Democrats.

The Speaker’s Committee is an important part of that framework. It produces an annual report to Parliament on the commission's performance, but the nature of the role of the Speaker's Committee is different from that proposed in the amendment. The Speaker's Committee is currently not given any say in how the commission should exercise its powers. It is there to report on the performance of the commission rather than to have a say in the exercise of its powers.

The purpose of paragraph 9(2) of Schedule 1 is to provide legal clarity so that the Electoral Commission can issue information about both the first-past-the-post and the alternative vote systems which it identifies as being necessary to help public understanding of the referendum question. I hope that that goes some way to answering the point of the noble Lord, Lord Soley, which was whether we could delete paragraph 9(2) and leave it to the respective campaigns. Although the respective campaigns will have facility under the free post to put out their argument—no doubt a positive argument for why they wish to retain first past the post or to move to the alternative vote and an argument against the other system—that is clearly not a role that would be appropriate for the Electoral Commission.

Paragraph 9(2) provides a clear legal basis for the Electoral Commission, having identified a need for factual information, to provide it. In his response to the previous debate, the noble Lord, Lord Rooker, said that it could be accused of bias because first past the post was described before the alternative vote. In fairness, if one looks at the electoral question, the question for the referendum, which is part of the Bill, first past the post is mentioned there before the alternative vote, so it is probably not unreasonable that the Electoral Commission should reflect in its information the question which Parliament is debating and which appears in the Bill, published on advice from the Electoral Commission.

[Lord Anderson of Swansea]

If a leaflet is to be produced by campaigning organisations, the noble and learned Lord will understand that, normally, when making an argument, you put the argument you want to make second. It is assumed that in a “on the one hand, on the other hand” argument, you put the argument that you favour second. Cannot that be got around in a leaflet by having one side of one page for and the other against?

[Lord Wallace of Tankerness]

The answer to that, as the noble Lord, Lord Rooker, pointed out, is that it takes a bit longer and more pages to describe the alternative vote than it does to describe the first-past-the-post system. Although that is an innovative and ingenious way to try to overcome the problem, I think that a practical issue is associated with it.

As my noble friend the Leader of the House said, the Electoral Commission has already published the proposed content of its information leaflets on its website. It is keen to have comments on the draft. If noble Lords wish to make representations about that information, they can of course send their comments to the Electoral Commission before the leaflets are published.

[Lord Foulkes of Cumnock]

Can the Minister help me on one issue? He knows as well as I do that before elections, party election broadcasts replace party political broadcasts. Will there be referendum broadcasts for the yes and no campaigns? Will that be part of the arrangements for the referendum?

[Lord Wallace of Tankerness]

Off the top of my head—I think I know the answer but I cannot be certain—I think that the answer is yes. I know that parties cannot use their election broadcasts for the referendum campaign. I think that that was decided in a case prior to the Scottish referendum in 1979. I think that there will be broadcasts, but perhaps I can confirm that in the course of my remarks.

I am mindful that all public bodies need to be held properly accountable for what they do, but we need to strike a sensible balance. It seems to me that there are dangers in introducing a role for a parliamentary committee in approving the operational work of the commission, as is envisaged under the amendment, rather than monitoring and commenting on its performance, as is the case established under the PPERA. It must also be remembered that the Speaker's Committee, however august, comprises politicians. Irrespective of how carefully we might think that the committee would use its power—I have no reason to think that it would do other than that—perception can be important in these matters. There might be concern if the Electoral Commission—which, I think, everyone agrees, has a reputation for its impartiality—had in this crucial area to have its work vetted or approved by a body comprising politicians.

Furthermore, building in an extra procedural hurdle before the commission could issue the clarifying information to help voters could be difficult if confusion about the systems was allowed to take root and hares were allowed to run which could not be corrected promptly because of the need to refer. We must also bear in mind that the commission already issues a lot of useful guidance to voters, parties, candidates and electoral administrators about the working of our system. That has worked well. I am not aware of any significant concerns about it.

I confirm that my instinctive answer was right: there will be referendum broadcasts for the designated campaigns.

It is the commission's responsibility to decide how, and whether, to provide that information. As I said, I think it is widely accepted across the Committee that the commission is well established as a neutral, independent body. I am confident that it does not need the extra provision which the amendment would impose. There is a further opportunity for noble Lords to comment on the draft. I therefore ask the noble Lord to withdraw the amendment.

[Lord Bach]

I thank the noble and learned Lord for his full answer and my noble friend Lord Soley for his contribution in support of my amendment. I am slightly disappointed by the noble and learned Lord’s response. As I said in opening, this is a modest proposal—and a practical one, I think. Without doubt, the Electoral Commission will come under a lot of pressure, to put it mildly, in the lead-up to and during the campaign for the referendum. No doubt, much of that criticism will be ill judged and unfair, but the Electoral Commission will have to face it.

This modest amendment is an attempt to give some cover, some protection to the Electoral Commission. The Speaker's Committee already exists. For the life of me, I cannot understand what are the dangers of extending its role to this issue. I understand that the Government do not want to adopt the amendment. I should like them to go away to think about it again because, as a practical measure to try to stop the difficulties that will undoubtedly arise in future, it seems to us to be sensible.

Of course I will withdraw the amendment today. We want to consider in more detail what the noble and learned Lord said, but I tell the Committee that we may well return to this issue at Report. I beg leave to withdraw the amendment.

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[Lord Bach]

My Lords, in our view these are two excellent amendments, although it is rather surprising that they have been put together in the same group. What links them is their excellence, and I hope that the Minister will be encouraging to both noble Lords who tabled them. I do not fear for the health of the noble Lord, Lord Phillips, on his way home. We all know him as a brave and independent-minded Peer who has already shown, in the course of the eight or nine months of the coalition’s existence—it seems a long time already—that he can act independently. Looking at him from where I stand now, he seems to be the same man he was before he voted a few months ago against the coalition on an important amendment on a different issue, so good luck to him in his amendment. Of course, if he had been concerned, he need not be any longer because he has the protection and support of the noble and learned Lord, Lord Mackay of Clashfern, and there cannot be any better protection and support than that around the House.

The noble Lord, Lord Phillips, pointed out the ambiguity and ambivalence of paragraph 10 and the need for it to be simplified. For those on the Front Bench on this side, that is clear, and I think it is the only point I need to make about his amendment. We hope that his noble and learned friend Lord Wallace of Tankerness will take note.

My noble friend Lord Lipsey’s amendment also seems to hit the mark for us. The noble and learned Lord, Lord Mackay of Clashfern, was right to say that what happened at the end of the last general election night—thankfully in a comparatively small number of venues, although even one was one too many—was absolutely disgraceful. Indeed, if it had happened in any other country, whether it was a sophisticated democracy or a new democracy, I venture to think that it would have been reported in the British media as being proof that that country had not really grown up democratically and lacked certain vital factors in elections. We must make sure that it does not happen again, and indeed I think that that is what my noble friend is suggesting in his amendment.

The noble Lord, Lord Rennard, was quite right to say that this would only affect the referendum, but it needs to affect all elections. However, the noble Lord, Lord Rennard, is perhaps best placed of anybody in the House to use his influence to make sure that government views can be changed so that this can become general practice rather than just for the referendum.

I have nothing else to say from the Front Bench except that we hope very much that the Minister will be sympathetic to these two amendments, both of which will add to the virtue of the Bill.

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, in addressing the amendment tabled by my noble friend Lord Phillips, I can assure him that he need not be concerned about proposing it.

Amendment 110ZA would impose a duty on the chief counting officer to facilitate co-operation between the officer, the Electoral Commission, the regional counting officers, counting officers and registration officers. In common with other noble Lords who have spoken in the debate, the Government agree with the intention of the amendment, which is to ensure that there is a strong relationship and good communication among those involved in running the referendum. However, we do not believe the amendment is necessary because there is nothing in the Bill which would inhibit this kind of activity from taking place.

Paragraph 10(1) of Schedule 1 states:

“The Chief Counting Officer must take whatever steps the officer thinks appropriate to encourage participation in the referendum”.

That, of course, includes precisely the kind of co-operation suggested in the amendment. Moreover, I can assure my noble friend and the Committee that this kind of co-operation is already happening in practice. The chief counting officer has established a working group, which includes regional counting officers, to co-ordinate activity ahead of the planned polls; and the commission’s plans for public awareness have been shared with this group, as well as with counting officers and electoral registration officers. We are assured that material will be developed by the Electoral Commission for use by electoral administrators to support their public awareness work and to ensure appropriate co-ordination with its own activities.

On a slightly more technical point, the amendment does not sit well with the current wording and spirit of paragraph 10 of Schedule 1, where the onus is on the chief counting officer being responsible for deciding what steps she thinks are appropriate to encourage participation. It should be noted that when undertaking this responsibility the chief counting officer can also use her power of direction under paragraph 5(5) of the schedule to require regional counting officers and counting officers to take a particular course of action to encourage participation. In contrast, the amendment would mandate the chief counting officer to undertake specific steps, which is not the intention of this provision.

In addition, one effect of requiring co-operation among certain named bodies is that such a requirement could raise a question about whether it was also permissible for the chief counting officer to consult other bodies that are not mentioned there. That problem does not arise in the original drafting.

I understand the sentiments and the intention underlying my noble friend’s amendment.

[Lord Campbell-Savours]

Will the Minister respond to the question of my noble friend Lord Anderson about the conflict between the requirement on the chief counting officer to encourage participation as he thinks fit and the fact that the Minister may not necessarily reimburse the local authority? If a registration officer believed that it was appropriate to encourage participation by, let us say, running a rapid registration campaign prior to the referendum and got on with it, and then it was decided that because the money was not available he could not proceed, would not that have legal implications for the officer’s failure to act?

[Lord Wallace of Tankerness]

My Lords, I think the noble Lord is asking whether, if a person is frustrated in his activities—I take a technical approach to this—the post hoc situation would be reimbursement. I take the point and do not wish to diminish it, but perhaps I could have some time to reflect on what he is saying. It is agreed on all sides of the Committee that there should be encouragement, which we do not wish to have cut off.

[Lord Campbell-Savours]

A local authority registration officer might write a report to the democratic services committee or a department in the local authority saying, “I wish to proceed on this basis because I believe it is an appropriate way for me to encourage participation”, and the local authority might say, “We are sorry but the money is not available and the Government are not going to reimburse us in the event the expenditure takes place”. Surely that must have legal implications for the position of the officer concerned.

[Lord Wallace of Tankerness]

I do not think that is how it would work. Reasonable expenditure will be reimbursed by the Government. If the expenditure was unreasonable and extravagant and went beyond anything that could be considered reasonable, there should not be an obligation on the Government to reimburse. I can reassure the noble Lord that reasonable expenditure for the purposes set out in paragraph 10(1) and 10(2) would be reimbursed. The noble Lord has put forward a serious hypothetical situation, but anyone would accept that running a registration campaign was a reasonable thing to do. If someone went about it in an extravagant way—which I cannot begin to think of at the moment—that would be deemed unreasonable by most sensible people and it would not be reasonable that taxpayers’ money should reimburse it. However, with a straightforward, reasonable campaign, the Government would reimburse.

On the points made by the noble Lord, Lord Maxton, the Scottish parliamentary elections will be counted first, ahead of the referendum. The selection of the First Minister does not normally follow the election anyway. I recall that in 2003 we did not get down to negotiations about establishing a coalition until the Monday after the election. Nevertheless, the point remains that the Scottish election count will take precedence over the referendum count.

There is a link between this amendment and the amendment of the noble Lord, Lord Lipsey, which relates to the role of the chief counting officer and the powers available to her. Sentiments have been expressed in the debate, as on other occasions, that democratic people were profoundly perturbed by the scenes they saw on the night of the last general election when people were not allowed to exercise their democratic rights. Paragraph 10(1) of the schedule states:

“The Chief Counting Officer must take whatever steps the officer considers appropriate to encourage participation in the referendum”.

The amendment of the noble Lord, Lord Lipsey, would provide that:

“These steps shall include measures to ensure that all those wishing to vote and arriving at the polling station within the appointed hours are able to do so”.

Clearly, the amendment is intended to address the scenes and situations we experienced in May last year.

I can assure the Committee that we take very seriously the problems that arose at certain polling stations. The Government have been considering the Electoral Commission’s report on the issue and, in particular, the recommendation that the law be changed to allow people who have not been issued with a ballot paper but are in the queues at 10 pm to vote. We are not convinced or satisfied that the amendment would enable the chief counting officer to direct that ballot papers are issued after 10 pm—if, indeed, that is the intention of the amendment. As the noble Lord indicated in his speech when he spoke to the amendment, the Electoral Commission report noted that that was not possible because it would not comply with the law. Clearly, the chief counting officer cannot issue a direction that contravenes the existing law. As the noble and learned Lord, Lord Mackay of Clashfern, indicated, that is possibly not something that could be done in the context of this legislation for a referendum alone.

I will try to deal with the other point in a bit more detail. It is important to note that in most cases where the problems occurred in May last year, the Electoral Commission has found that the common factor was inadequate planning processes and contingency arrangements—or, more to the point, that such arrangements were not in place.

The noble Lord, Lord Lipsey, quoted my right honourable friend the Deputy Prime Minister. He quoted him accurately, but perhaps I should just quote a little more of what he said. At Question Time in the other place on 10 November, the Deputy Prime Minister said:

“I happen to think that, in this instance, simply passing a law will not deal with the problem, which was a lack of resources and poor organisation by the returning officer, who acknowledged as much”

—he was specifically talking about Sheffield, where his own constituency is—

“… That is what we need to address; we should not always simply reach for the statute book”.—[Official Report, Commons, 10/11/10; col. 285.]

Officials have met the Electoral Commission, and indeed electoral administrators, to discuss the issue of managing queues at polling stations. It is clear that there are divergent views on the effectiveness of any legislative change, and a significant number of administrators are not in favour of it. Again, that is a reflection of the fact that the problems in that particular case in May last year were because of planning failures and the lack of effective contingency planning.

Given the divergence of views that exist on the specific recommendation of the Electoral Commission and given that there is the general consensus that the problems largely arose from poor planning, we believe there is a need for significant additional discussion before any change to legislation should be proposed, if indeed that is eventually deemed appropriate. There needs to be buy-in from all those who would be involved in administering elections.

Under the Bill, we consider that the chief counting officer already has the necessary powers to provide appropriate guidance, training and support to the regional counting officers, as well as to counting officers themselves, to help address the issues that arose in May 2010. I am aware that some of the contingency arrangements have already changed the ratio of polling clerks to the number of voters at each polling place. We think there is certainly a need for more discussion as to all the potential consequences of any legislative amendment before a change to the principles underlying the existing electoral rules is considered. In these circumstances there is some benefit to having the certainty of the present rules, admittedly with the back-up role that the chief counting officer has the authority to play in giving the necessary guidance, training and support.

[Lord Lipsey]

Perhaps two things are getting confused here. My amendment would not deal with the strict legislative problem that the Electoral Commission originally identified. That is still under discussion and I agree this is not the appropriate time to put that right. However, my amendment would convey to returning officers the extreme importance that Parliament attaches to tackling these problems. Yes, it would be a declaratory piece of legislation, but that is not without force in this world. The noble and learned Lord might like to reflect on the point that, if he rejects this proposal, it will seem as if the Government are not really taking on board the depth and importance of the problems that arose and the reactions of electors to them. I do not think that is good for the Government and I do not think it is good for government, as a matter of fact.

[Lord Wallace of Tankerness]

I cannot accept the second part of what the noble Lord has said, because the Government accept that what happened in May last year was serious. There is no doubt about that. Anyone reading this debate would realise that the view on all sides of the Committee is that the situation was serious. I hope to reassure the noble Lord—who accepts that his amendment would not change the legislative basis for that—that there is a distinction to be made, given that it was accepted that in the cases last year the common factor was one of poor planning. In this case, there will be a chief counting officer, who will have a responsibility and already be aware—not least because of the dual role with the Electoral Commission—about the importance of this issue. I am sure the chief counting officer will be well aware of the sentiments expressed and the important and serious points made in this debate. If the noble Lord’s aim was to get a message across, his amendment has provided a very helpful forum and opportunity to get that message across. She has the powers, we believe, to provide the appropriate guidance, the appropriate training and the appropriate support so that these issues will be addressed and the kind of situation that we saw in May 2010 will not arise again.

Against that background, I ask the noble Lords not to press their amendments.

[Lord Phillips of Sudbury]

My Lords, I really did not want to make heavy weather of this amendment, but I have to say that my noble friend the Minister’s response gave a series of legal interpretations with which I have to disagree. It is unfortunate that I have to disagree, but I do, even though I know that he is advised in these matters and one normally accepts such advice to be beyond question.

The first argument advanced by the Minister was that paragraph 10(1) says:

“The Chief Counting Officer must take whatever steps the officer thinks appropriate to encourage participation”.

He said that such a provision allows the chief counting officer to direct the other officers—regional counting officers and so on—as to what to do and how to do it. I think that is simply wrong. There is no implication of a power of direction in that sub-paragraph. His second argument—

[Lord Wallace of Tankerness]

I think that I noted that, when undertaking the responsibility, the chief counting officer can use her power of direction under paragraph 5(5) of Schedule 1 to require action. I think that I emphasised the importance of co-operation—which is both permissible and happening in practice—but I referred to paragraph 5(5) in relation to powers of direction.

[Lord Phillips of Sudbury]

I was coming on to paragraph 5(5), but I am afraid that my first point stands. If the Minister looks back at Hansard, he will see that I am right.

Paragraph 5(5) of Schedule 1 explicitly gives the chief counting officer powers to direct counting officers in the discharge of their functions. I thought long and hard about this and consulted—if he will not mind my saying so—with the noble and learned Lord, Lord Mackay of Clashfern, who knows a thing or two about interpretation. We agreed that the reference there to the power to direct is with regard to the conduct of a referendum. If the Minister looks back on paragraph 5, he will see that it is about the conduct of the poll, the printing of ballot papers, the issue and receipt of postal ballot papers, verification and counting of votes cast—that is, solely and exclusively a power of direction on technical and practical matters.

Lastly, the Minister said that he thought that the situation would be endangered by my amendment because he said that, if there was a right of “knocking heads together” among these five categories of officer, it might involve consultation with outside bodies. However, there is no mandate whatever for that in my amendment. If the Minister says that I have got it wrong—

[Lord Wallace of Tankerness]

I apologise if I did not express the matter clearly. What I said was that one effect of requiring co-operation among certain named bodies is that it might raise a question about whether it is also permissible to consult other bodies that are not mentioned there. In other words, if you are mandated to consult A, B, C and D, it may raise a question if you wish actually to consult F.

[Lord Phillips of Sudbury]

There is no reference in my amendment to consultation. This is a power of facilitation and of co-operation among the five sets of officers mentioned. There is no question of consultation, implied or otherwise. This is solely and exclusively among these five sets of people.

I am not a happy mover, I might say, and I would be grateful before I withdraw the amendment if the Minister would agree that this needs further consultation between us. If indeed his arguments prove to be fallacious—he started by sympathising with the sentiment of my amendment—at least there will be the consideration that a further amendment could be brought back at the next stage.

[Lord Wallace of Tankerness]

I am more than happy to do that. Just looking at it briefly, I think that there is a difference of opinion—not as to intention, but as to our interpretation—and I am more than happy to try to resolve that with my noble friend.

[Lord Phillips of Sudbury]

On that basis, I am happy to withdraw the amendment.

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Moved by

[Lord Wallace of Tankerness]

110A: Schedule 1, page 20, line 13, leave out “appointed under section 8 of the 1983 Act”

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Moved by

[Lord Wallace of Tankerness]

110B: Schedule 1, page 24, line 26, at end insert—
“( ) The Chief Counting Officer is entitled to recover expenses incurred by that officer for or in connection with the referendum if—
(a) the expenses are of a kind that would otherwise have been incurred by counting officers or Regional Counting Officers, and(b) the Chief Counting Officer considered that it would be more economical for the expenses to be incurred by that officer instead.”

[Lord Wallace of Tankerness]

My Lords, this group contains Amendments 110B, 110C, 110C, 110D and 110E. The amendment would give the chief counting officer, who is chair of the Electoral Commission, the power to incur expenses for the effective conduct of the referendum and in certain limited circumstances, make payments in respect of those expenses out of moneys to be provided from the Consolidated Fund. I can assure the Committee that the chief counting officer will be able to spend conduct moneys only where doing so provides a clear financial benefit. The Royal Mail, for example, has indicated that it may be able to provide a cheaper service for the sweeps of mail centres—a service that ensures that any votes still in the mail centres towards the end of polling day are identified, extracted and provided to returning and counting officers before the close of poll that evening—if it can contract for this on a national basis with one individual rather than having to negotiate and contract with more than 350 officers who will be conducting the poll at local level.

The amendment would help to make the administration of the referendum easier for the chief counting officer and for counting officers, and provides an opportunity for savings to be made on the conduct of the poll. I beg to move.

[Lord Falconer of Thoroton]

This seems very sensible, but I am slightly bewildered. How on earth does the chief counting officer not have that power anyway?

[Lord Wallace of Tankerness]

My Lords, when this issue arose, the view was taken that it was uncertain that that power existed and hence there was the need to put it beyond peradventure that it did. The issue was flagged up by the example of the Royal Mail that I gave, and there was concern that that power did not exist. As the noble and learned Lord says, it is a sensible power and one which I hope will commend itself to the Committee.

Amendment 110B agreed.

Moved by

[Lord Wallace of Tankerness]

110C: Schedule 1, page 24, line 30, after “account” insert “of a counting officer or Regional Counting Officer”

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[Lord Falconer of Thoroton]

This is an important point which my noble friend Lord Foulkes has put so accurately. The position should not be different in England and Scotland. In England, interest is sufficient, which means a general interest—almost in a layman’s sense—in the subject matter, whereas in Scotland, interest and title are needed, title meaning, as my noble friend Lord Foulkes said, some legal relationship which gives them a right to sue. The amendment would make Scotland and England the same in relation to whether you are entitled to challenge an electoral process which is identical on both sides of the border. That seems sensible. I would be interested to hear what the Minister has to say.

[Lord Wallace of Tankerness]

I am grateful to the noble Lord, Lord Foulkes, for bringing this amendment forward. He and I well know that the matter has been raised by the Law Society of Scotland. Indeed, I tabled a similar amendment in the previous Parliament.

The amendment would amend the provisions so that a challenge brought through judicial review in Scotland can be launched if its purposes are on the same basis as proceedings elsewhere. In Scotland, there are two separate tests for bringing judicial review, in that a petitioner has to demonstrate both title and interest, whereas in England, Wales and Northern Ireland there is a single test of interest alone.

The noble Lord, Lord Foulkes, also mentioned the recommendation made by Lord Gill, the Lord Justice Clerk, in his Report of the Scottish Civil Courts Review. However, I am concerned that because of the way in which this amendment is drafted, it will not have the desired effect. By stating that,

“the petitioner’s interest alone shall be sufficient to enable a petition to be lodged”,

it has almost gone too far and would effectively disapply the need to establish all other matters when considering a case for judicial review—including, indeed, whether there is sufficient legal grounds for a challenge.

The other, perhaps more practical, point is that it is difficult to see what the practical effect would be, as we think it is likely that the Scottish courts would entertain a judicial review from any elector entitled to vote at the referendum or at parliamentary elections and any permitted participant. By their very nature, they have an interest—they were taking part in the election.

We should be mindful of the fact that this issue goes wider than the referendum alone. It raises important issues about the nature of judicial review in Scotland, not least those flowing from Lord Gill’s report, and the circumstances in which they should be permitted to raise petitions for judicial review. That is an important issue. It is one that undoubtedly is receiving detailed consideration, not least by the Scottish Government and the Scottish Parliament. It would not be helpful if this Bill somehow tried to pre-empt it on an ad hoc basis, particularly, as I have indicated, we believe that an elector in Scotland would be able to raise a petition.

[Lord Foulkes of Cumnock]

On the key point, is the Minister saying that because of the recommendation of Lord Gill, he believes that a petitioner in Scotland could raise it on interest alone, without any title, so it would in effect be the same as in England? I am not quite clear.

[Lord Wallace of Tankerness]

My Lords, if the noble Lord will bear with me, the Lord Justice Clerk, Lord Gill, recommends in his report that the separate test of title and interest be replaced by a single test, that test being where the petitioner has demonstrated a sufficient interest in the subject matter of the proceedings. That is not specific to this referendum. We have a quite important change in the law of judicial review in Scotland anyway and it goes along with numerous other recommendations on civil procedure in the Scottish courts. These matters are, I am aware, under consideration, but it would not be appropriate in this Bill to do it on a one-off basis, particularly in circumstances where we believe that being a participant in the referendum, one would qualify to challenge, if indeed that situation should ever arise.

[Lord Falconer of Thoroton]

That is very helpful. I read the noble and learned Lord, Lord Wallace of Tankerness, as saying that the current requirement in Scotland for judicial review is title and interest. He is expressing the view from the Dispatch Box that if you were an elector in the relevant election that you wished to challenge—the referendum—that would give you title and interest for the purpose of Scottish judicial review. That being so, the difficulties and dangers of trying to do an ad hoc change here do not arise and we should be reassured that any elector would be able to bring a judicial review challenge in Scotland, just as they would in England.

[Lord Wallace of Tankerness]

As I am sure the noble and learned Lord knows, these will ultimately be matters for the court but that is certainly our understanding, or my belief.

[Lord Neill of Bladen]

Before the noble and learned Lord finishes on that point, I feel some concern that he is not prepared to put on to the statute book the view which he has just expressed: that title and interest would necessarily be found by a court to exist here. The worry would be that there could, theoretically, be people advising in Scotland who will be unaware of the discussion now taking place and of the deliberate abstention from following up Lord Gill’s advice on a one-off basis on this very point, where there is potentially a conflict between the practice in Scotland and that in England. Would it not be possible to think of some way of putting on to the statute book information so that anyone advising would see that title and interest were thought to be, by the Minister or by the Government, both present in this case?

[Lord Wallace of Tankerness]

That is an important point, one which I wish to reflect on. I think it is satisfactory as it stands, but I understand what the noble Lord is saying: that there may be circumstances where, in the absence of any reference, someone may not appreciate that fact. Without making any commitment, I will look at that and see whether there is a way. As I have indicated, as the amendment stands there is a problem, too. In fact on interest alone, regardless of anything else, it would qualify and I am sure that is not what the noble Lord intended.

I think I am right in saying that the debate on whether the schedule be agreed is also a part of this, but perhaps I can reply later to that debate as part of this group.

[Lord Campbell-Savours]

Perhaps I might speak to it now.

[Lord Wallace of Tankerness]

If it makes it easier, yes.

[Lord Campbell-Savours]

I want to go back to my earlier intervention. As I understood the noble and learned Lord’s reply, under paragraph 10(5), the Minister may reimburse reasonable expenses incurred by a registration officer for a local authority. Now, if the Government are in a position to reimburse such reasonable expenditure prior to the referendum, should that information not be communicated to local authorities? It might well be that some local authorities want to run a blitz campaign prior to the referendum, to increase registration. The Government appear, in the answer that the noble and learned Lord gave me, to be to some extent offering them the resources as long as the expenditure is reasonable. Perhaps the Minister might write to me on this point, because I am sure that local authorities will have picked up on his responses to my earlier interventions.

[Lord Wallace of Tankerness]

I am certainly more than happy to write to the noble Lord on that point. I do not think that I need to elaborate on what I said to him before. I want to indicate briefly that Schedule 1 makes provision about the key aspects of the conduct of the referendum and the regulation of the referendum campaign. The approach of the Government in doing this has really been to replicate the provisions that are made for parliamentary elections, where they are appropriate. However, there are some areas where we need to make specific provision to tailor-make the provisions for this referendum. On the campaign spending and funding framework already in place for referendums, what there is under the PPERA will generally apply. I commend this schedule to the Committee inasmuch as it tries to replicate, wherever appropriate, the rules which are now well tried and tested.

[Lord Foulkes of Cumnock]

I am grateful to the Minister and, particularly, to my noble and learned friend Lord Falconer for their exchange, which helped to clarify the situation. I was surprised because this amendment was in fact drafted by our mutual friend Michael Clancy, who has done a lot of these before and understands parliamentary drafting very well. However, I was particularly grateful for the intervention from the noble Lord, Lord Neill, on the Cross Benches, and for the Minister’s response: that he will look at this again to see whether there is a way to achieve it so that Scots and English people will have the same rights guaranteed on both sides of the border, without any court having to make a decision and without creating a precedent which might cause any difficulties for other aspects of judicial review. On the basis that the Minister has been very helpful in giving me that assurance, I beg leave to withdraw the amendment.

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[Lord Falconer of Thoroton]

I should perhaps have asked this before but, on page 25, Schedule 1 requires the Electoral Commission to,

“prepare accounts in respect of their expenditure in relation to the referendum”,

only if,

“directed to do so by the Treasury”.

Is the Treasury going to give such a direction? It seems extraordinary that we would not know what the expenditure of the Electoral Commission was on the referendum unless a direction had been given by the Treasury. It might be that this is, as it were, language which is always in, and that it will of course give that direction, but I thought that it was a very odd way of doing it. It would mean that we could not find out how much had been spent on the referendum, but you can bet your bottom dollar that there will be a lot of questions asked about how much the referendum cost at some stage.

[Lord Wallace of Tankerness]

My Lords, I probably share the noble and learned Lord’s view. It is almost counterintuitive to think that the Treasury might in some way not wish that—well, it may be, I do not know. Freedom of information requests might well flow fast and furiously if that did not happen. Perhaps if I talk long enough, I may get a definitive answer on whether this is indeed something that generally appears in such legislation or whether there is some reason unbeknown to us.

The answer is that it is part of the Electoral Commission’s accounting framework that it normally accounts to the Speaker’s office. I suspect that the paragraph makes provision that the accounts in relation to the referendum could be extracted. If that is incorrect, I will ensure that a proper clarification is intimated to the noble and learned Lord and duly circulated.

[Lord Falconer of Thoroton]

As the noble Lord the Leader of the House said, I am getting a sapling of an idea of what the reason is and I think I understand. This is not a major point, but perhaps the noble and learned Lord could write. He should not bother to write if the sapling of the idea is, as I think was said, that we have to do it slightly differently because of this and that there will be accounts. If there will not be accounts available, perhaps he should write; otherwise, we can forget it.

--- Later in debate ---

[Lord Falconer of Thoroton]

My noble friend Lord Rooker has Amendment 113 in this group, but he has had to leave. It is effectively the same as the amendment tabled by my noble friend Lord Foulkes in that it proposes that the polls should shut at 11 pm. The point has already been made but it seems a good thing that the time should be extended for people to vote. There may be reasons why that is a bad thing. I will wait to hear what the Minister says.

The next group of amendments, which would have been moved by my noble friend Lord Rooker, but which I will move because he cannot be here, seek to deal with the overcrowded polling stations issue, which we have already discussed and in which there was an impressive intervention by the noble and learned Lord, Lord Mackay of Clashfern. There was quite broad support for the amendment tabled by the noble Lord, Lord Phillips. The amendment that proposes that the polls should shut at 11 pm, as opposed to 10 pm, might, subject to the information that the Minister has, be of assistance in relation to that. If the number of people who would vote between 10 pm and 11 pm was quite low—even though there might be a late surge—it would reduce the likelihood of what happened in the previous general election happening again. It might, for that additional reason, be worth contemplating.

[Lord Wallace of Tankerness]

I thank the noble Lord, Lord Foulkes, for raising these issues with his amendments, which would provide electors with earlier notice of the referendum and give voters extra hours to cast their ballots. As noble Lords are aware, it is the Government’s intention that the referendum should be held on 5 May. Therefore, any alterations to the timetable and the hours of polling proposed for the referendum would inevitably create inconsistencies between the rules governing the referendum on the one hand and those governing the elections scheduled to take place on 5 May, with which the referendum will be combined, on the other. Fundamentally, this would be confusing and unhelpful for voters. Noble Lords may already have noted that that view is supported by the Electoral Commission. The amendment would also be inconsistent with the combination of rules in Schedules 5 to 8 to the Bill.

I turn to the first part of the amendment, which deals with the referendum timetable and the issuing of the notice of poll. With the exception of the Scottish parliamentary election, the 25-day timetable will be used for all other polls that are scheduled to take place on 5 May 2011. During the Bill’s passage through Parliament, we specifically amended the deadline for issuing the notice of poll from 16 to 15 days before the date of the poll. The noble Lord’s amendment would take that up to 20 days before the date of the poll. The purpose of the amendment was to ensure that a consistent deadline for the publication of the notice of poll applied for most of the polls that will be combined across the United Kingdom.

Only in Scotland will the deadlines for publication of the notice of the two combined polls be different from each other, due to a slightly different timetable that applies to Scottish parliamentary elections. However, moving the deadline to 20 days before the poll would lead to inconsistency right across the United Kingdom and potential confusion for voters and electoral administrators. The Electoral Commission will take steps, however, to ensure that electors are aware of the referendum before the statutory timetable commences, and electors will not have to wait until notice of poll is issued, or until they receive their official poll card, to change their voting arrangements should they wish to do so.

I turn now to the amendment on polling hours. It is an important amendment and important arguments have been adduced in its favour. It would extend the polling hours for the referendum, which could be difficult for polling staff and polling agents. It may even be difficult for people who rely on public transport to get to a polling station for 6 am for the opening of the poll. At the end of the day, extending the close of poll by one hour could have implications for the staff at the time of verification, not least in those cases where two polls will be combined on one day. However, perhaps more importantly, it could be confusing to voters to have polls taking place on the same day but closing at different times. Under this proposal, voters would turn up before 7 am or after 10 pm to vote in the referendum, but would perhaps be told that they were unable to vote in the Scottish parliamentary election, the Welsh National Assembly election or some of the local government elections in England. I suspect that would increase, rather than reduce, the possibility of voters missing their opportunity to vote, which could cause some dissension.

The important point, which I think the noble Lord, Lord Foulkes, mentioned, is that the opportunities for postal voting and voting by proxy are now such that if the current polling hours are unsuitable for electors, they still have the opportunity to vote. I readily accept that in many cases work patterns and family patterns may make it difficult, but it is now possible to vote either by proxy or by post. As we all know from taking a keen interest in elections, the number of postal votes has increased considerably; obviously a good number of people take that opportunity. It may be that the message about opportunities for postal and proxy voting can be reinforced in the context of information relating to the polls.

It is also important that the issue regarding the timetable for the polls goes wider than the referendum alone. It should perhaps be reviewed in the longer term for future national elections and referendums. With these words and assurances, I hope the noble Lord will withdraw his amendment.

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[Lord Campbell-Savours]

My Lords, I want, very briefly, to remind civil servants, when they are drawing up the wording as currently set out in the Bill, of what happened with the ballot paper in the first mayoral elections in London. We had made recommendations as to what should be on the ballot paper; the civil servants basically took over the agenda and wrote the question; I objected very strongly, but of course as usual, I was overruled on the detail; and the result was that a lot of ballot papers in the first mayoral elections in London were wasted because of the framing of the question.

Wording is crucial and I think it has to be politicians who decide on that wording, because it is only we who understand how electorates respond to certain language. Therefore, I hope that a debate takes place within the department about whether the current wording in these areas of instruction is right and whether the wording that my noble friend wishes to introduce for the benefit of people voting in the referendum might be better. The Minister should take this as a very serious amendment: it might not be the final wording, but let there be a further debate, because if it does not take place, the danger is that the events of the first mayoral elections in London may well be repeated.

[Lord Wallace of Tankerness]

My Lords, I am grateful to the noble Lord, Lord Rooker, for tabling these amendments; he indicated to me that he had to leave and that they would be spoken to by the noble and learned Lord, Lord Falconer. They raise important issues which it is very helpful for the Committee to have the opportunity to address. Amendment 115 obliges by law that counting officers should not allocate more than 1,050 electors to any polling station within their voting areas. This is a very worthy and laudable attempt to address the problems, referred to by the noble and learned Lord in moving this amendment, which arose at some polling stations in the May 2010 election, when a number of electors were unable to cast their votes due to queues forming at certain polling stations. Although these incidents were isolated, they are certainly not taken lightly—I emphasise that again.

It is the responsibility of electoral administrators to provide for the smooth running of the voting process in elections, and that includes contingency plans to cater for events such as when there is a higher than expected turnout at one or more polling stations for which they are responsible for allocating voters and for staffing. The chief counting officer for the referendum is, of course, the chair of the Electoral Commission and she has the power to direct all other counting officers across the United Kingdom who administer the referendum. The Electoral Commission has indicated that the chief counting officer intends to issue directions to counting officers as to the maximum number of electors to be allocated to any polling station and the associated minimum number of staff to be present at each polling station. As I indicated in response to an amendment moved earlier by the noble Lord, Lord Lipsey, the Electoral Commission has already started to issue guidance to counting officers on the number of polling staff who will be required.

I am therefore concerned that the amendment would remove any discretion, both of the chief counting officer and of all other counting officers, to decide how many electors should be allocated to each polling station and the number of staff who should be present at each polling station. To give an example, it does not seem sensible to require that a village of, say, 1,200 electors should have two polling stations when there is no suggestion that previous arrangements for that village have proved inadequate. Indeed, it might even mean that fewer staff were available at each polling station to assist voters. It is that kind of flexibility which we would not like to remove from the chief counting officer.

We know that queues arose in the elections of May last year primarily because of planning failures and the lack of effective contingency planning. However, we believe that at the polls being held in May this year, better guidance, better staff training and support and better planning procedures in the run-up to the polls would be more appropriate and more effective in addressing the issues that have been raised, as opposed to placing statutory limits on the number of voters who can be allocated. I hope that the chief counting officer’s stated intention to issue directions to counting officers on this issue will reassure noble Lords and that the House will recognise that the amendment would reduce flexibility, and that that in turn could increase risks and not necessarily prove good value for money.

On the second amendment, which would oblige all counting officers to print 100 per cent of ballot papers, I must say that until last year I always thought that that was the case anyway. The purpose is that they should print the same number of ballot papers as there are voters on the electoral register in their area of responsibility. Currently, they must print only the number of ballot papers that they feel is necessary.

--- Later in debate ---

Moved by

[Lord Wallace of Tankerness]

116A: Schedule 2, page 33, line 1, leave out from “with” to second “or” in line 2 and insert “paragraph (3) or (4),”

[Lord Wallace of Tankerness]

My Lords, this is a minor and technical amendment to correct a cross-reference under rule 13(6)(a) of the referendum rules. The effect of this minor amendment is that the number of ballot papers counted or votes cast may not be questioned by reason of any non-compliance with the provisions under rule 13(3) for England and rule 13(4) for Wales, Scotland and Northern Ireland relating to the provision of polling stations. Noble Lords will note that, as it stands, the reference is not to rule 13(3) and rule 13(4) but rather to paragraph 13(5)(a) and (b). The purpose of this amendment is to get the cross-reference correct. I beg to move.

[Lord Falconer of Thoroton]

Just for clarity, the reason why sub-paragraph (5) is not now included as an exception in sub-paragraph (6)(a) is because it is included in sub-paragraph (4). Is that right? Looking at it to start with you want it to apply to sub-paragraph (5) as well, but sub-paragraph (5) appears to go in the drafting because the deletion in the amendment goes up to the second “or” in the second line. You would not want a vote not to be counted if the polling station happened to be in the wrong district. I assume that sub-paragraph (5) is deleted because it is included in sub-paragraph (4), or am I wrong about that? I cannot see any reason why a technical failure of the position of the polling station in Wales, Scotland or Northern Ireland should vitiate the vote. I assume it is because the polling stations in sub-paragraph (5) are included in sub-paragraph (4). Officials are nodding. It might be better if the noble and learned Lord says yes.

[Lord Wallace of Tankerness]

The noble and learned Lord has accurately identified the issue and that is, as it were, the error that this amendment seeks to correct.

Amendment 116A agreed.