Parliamentary Voting System and Constituencies Bill

Lord Wallace of Tankerness Excerpts

Wednesday 2nd February 2011 Lords Chamber

[Lord Howarth of Newport]

My noble friend has a great talent for a kind of lateral thinking that is always fruitful in our debates. His point is a little wide of the amendment; I must reprove him to that extent. However, it would be rather curious if we were to be presented with legislation that proposed that in elections for police commissioners, police officers should not be entitled to play a part or exercise any persuasive powers.

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

I thank noble Lords who have taken part in this debate and highlighted some interesting aspects. I suspect that parts of the 1983 legislation have not been visited for some time. To take the general point, I am not aware of any moves afoot to review electoral law in this way, but I am sure that those in the responsible department will take note of what is said with regard to the generality.

The noble Lord, Lord Howarth of Newport, referred to this disparagingly as a cut-and-paste job. The schedule seeks to ensure that as far as practically possible, the existing rules governing the registration for and the conduct of parliamentary elections should apply in the case of the referendum. As is very obvious, in order to take account of this, there have had to be changes in terminology. For example, it would not make sense to have references to candidates when there are no candidates in a referendum. To do that, people had to go right through.

I was asked whether this section of the 1983 Act would be considered for revision in future. We will want to look at that, but it is right that we base the referendum on the rules that we know. If I had come to the House with subtle changes, I would have had a difficult job trying to explain them, and no doubt some noble Lords would have thought that a great conspiracy was afoot. In future, we will be happy to review the provisions, but I cannot honestly say that it will be done quickly—certainly not in time for Report. However, I do not think that that was what was asked: I think that the request was to look at this more generally.

I will respond to specific points. I do not have the information about whether there have been any convictions under Section 61 of the Representation of the People Act. That is a matter for the courts and I am advised that the information is not collected centrally. The provision with regard to voting on one’s own behalf or by proxy, to which the noble Lord, Lord Campbell-Savours, drew attention, is intended to cover the situation where one can vote on one’s own behalf and also by proxy on someone else’s behalf, but one cannot vote twice on one’s own behalf.

That brings us to the question of postal votes. There is a danger of Members of the Committee getting into their anecdotage. The noble Lord, Lord Maxton, asked whether, if you have a postal vote in one place but are registered in another, as Members of Parliament have been, you could vote in another place even if the postal vote had been issued. I know the answer because in the 1989 European elections I had a postal vote in the Highlands and Islands constituency, for which I was a Member of Parliament, and I was living in London. Local elections were on the same day and it took me a long time to persuade the polling clerk not to issue me with a ballot paper for the European elections because I had already voted and it would have been an offence to vote again—whereas I did want to vote in the local elections. I do not know how I knew about it, but I did. Perhaps it is important, as the noble Lord, Lord Campbell-Savours, pointed out, that the information should be in the material that will go out to those who receive a postal vote that they may not vote more than once.

[Lord Maxton]

In that case, is the Minister saying that it will be the responsibility of the person who is registered to make sure that they do not receive a postal vote for the referendum, rather than it being noted on some form of national register?

[Lord Wallace of Tankerness]

The thing to say is do not use it, or, if you have used it, do not take the second vote. The important thing is that nobody votes more than once.

[Lord Campbell-Savours]

My noble friend Lady Golding intervened to correct me. However, it still leaves a question in my mind. If the application for the postal vote has been made immediately prior to the election, how can we be sure that the officers in the polling booth have before them an electoral register that has been updated to include the mark that my noble friend Lady Golding referred to? I do not expect the Minister to reply on that point now, but he might wish to check and let us know the position on Report or in writing.

[Lord Wallace of Tankerness]

I will certainly check and advise the noble Lord, and other noble Lords who have contributed to the debate.

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[Lord Bach]

My Lords, the noble Lord, Lord Rennard, is being a bit hard on those who stand for elections. Their job is to stand for elections. Why should they know? Any agent would tell them, “Mind your own business”.

[Lord Wallace of Tankerness]

As one who stood for election on I do not know how many occasions, I shall not tangle with one of the best agents that my party has ever known.

[Baroness Golding]

I realise that the noble and learned Lord does not wish to tackle one of the best agents, but there is an emergency postal vote if you are taken into hospital. I say as an agent that one of the best agents seems to have forgotten that.

[Lord Wallace of Tankerness]

If a person who has been taken into hospital requires an emergency postal vote, it is highly unlikely that they will turn up at the polling station because, by definition, they are in hospital.

The general point is made. There is a responsibility on the citizen not to vote twice in the same election. I should have thought that that was a well known rule. The other point which seems to be agreed across the Committee is that it is important in this referendum that we use the rules that have been in place for 28 years. The time may be coming for them to be reviewed, but that will not happen before the referendum. We are safer, in terms of running a smooth referendum campaign, using rules that are tried and tested.

Schedule 4 agreed.

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Moved by

[Lord Wallace of Tankerness]

122DA: Schedule 5, page 138, line 2, at end insert—
“( ) Regulation 11 of the Local Authorities (Conduct of Referendums) (England) Regulations 2007 has effect as if the reference to regulation 10(1) or (7) included a reference to section 4.”

[Lord Wallace of Tankerness]

My Lords, Clause 4 makes it clear that the local government referendums in England can be combined with the referendum on the voting system. The amendment is required to make clear which set of rules applies to govern the conduct of the poll, should such a local referendum be combined with the referendum on the voting system in voting areas where no other relevant local election is taking place. Although we have yet to receive confirmation of where, if any, local government referendums will be held on 5 May, this minor amendment is important to clarify which set of rules would, in that eventuality, apply to govern a combination of such a poll with the referendum on the voting system. I beg to move.

Amendment 122DA agreed.

Moved by

[Lord Wallace of Tankerness]

122E: Schedule 5, page 151, line 40, at end insert—
“( ) Regulation 116(1) of the Representation of the People (England and Wales) Regulations 2001 (S.I. 2001/341) has effect in relation to a relevant election as if the reference to documents forwarded under rule 55(1)(e) of the elections rules were to documents forwarded under rule 50(1)(a) of the referendum rules as applied by this paragraph.”

[Lord Wallace of Tankerness]

I shall speak also to the other amendments in this group, all of which are related. Indeed, they relate to each of the combination schedules and have been grouped to ensure that there are equivalent combination provisions across the whole of the United Kingdom.

The overall purpose is to ensure the smooth running of the provisions in Schedules 5 to 8, which relate to the provision of, access to and retention of documents at a combined poll. The amendments are technical and will make certain that the right documents are available to the right officers at the right time, and are retained by the right officers after the polls are over.

I do not intend to go into this matter in great detail, unless pressed, but noble Lords may be interested to note that the amendments provide that at the end of a combined poll there is the same obligation on the registration officer or counting officer to provide access to and supply copies of combined election documents that would have existed if the election had been taken alone. In England, Wales and Scotland, the counting officer will be provided with the necessary lists and other election documentation and information needed to carry out his or her functions in relation to the combined elections that are transferred to him or her. For example, we have specifically provided that as soon as practicable after 5 pm on the sixth day before the poll—that is, after the date for applying for a proxy vote has passed—the registration officer must provide the counting officer with the absent voting lists for any elections which are combined with the referendum in his or her voting area.

An equivalent provision is not needed for Northern Ireland because of the chief electoral officer’s role as both a returning officer for the election and counting officer for the referendum. Other provisions specifically relate to documentation in Northern Ireland, including a court order for the production of a combined corresponding number list retained by the chief electoral officer for Northern Ireland, which can be obtained where necessary in relation to a local election offence or petition, in the same way that such an order could have been obtained if the document had been retained by an officer of the relevant council.

I should also advise the Committee that the Electoral Commission, the Association of Electoral Administrators, the Northern Ireland Office, the Scotland Office and the Wales Office have confirmed that they are content with these amendments. I beg to move.

[Lord Bach]

My Lords, I thank the Minister for introducing his amendments. I have a simple question. Why are they being added now when I think a number of amendments were added at the latter stage in the Commons proceedings on the Bill? Was this something that was omitted or has it just been thought up? I am talking about Amendments 122F, 122H and 122K, which all refer to the same thing. I can see its importance and we do not oppose it, but why does it appear now when everything else in Schedule 5 was there at the time of the proceedings in another place?

If the noble and learned Lord does not have the answer by the time I sit down, he can write to me. This seems quite important so I am interested to know why it was not added before.

[Lord Howarth of Newport]

Let me provide a little more time for officials to advise the noble and learned Lord. I should be grateful if he would advise the House on the means of communication whereby these minor, technical but none the less significant changes will be communicated to those whose duty it is to carry out the relevant functions. How much complexity is there in that and will training be needed? How will the system ensure that all those who need to know about these changes being made at a late stage actually know, given the short-ish interval between enactment and the date of the referendum?

[Lord Wallace of Tankerness]

My Lords, I understand that through scrutiny of the legislation it was noticed that these points needed to be added to the Bill. In answer to the noble Lord, Lord Howarth of Newport, the schedules are combination schedules. He referred to training. What was going to happen would happen anyway. For the sake of argument, if it was an election to the Welsh National Assembly, now that there is a combined election it would bite on both ballots. In that regard the chief counting officer is responsible for the referendum and there is communication there. My information is that these points have already been communicated to administrators who have commented on the provision. As I said when I moved the amendment, the Electoral Commission and the Association of Electoral Administrators have already confirmed that they are content with the amendments. In other words, it is very much into the system already and I am confident that they will be well communicated.

Amendment 122E agreed.

Moved by

[Lord Wallace of Tankerness]

122F: Schedule 5, page 152, line 26, at end insert—
“Provision of registers etc to counting officerRegistersRegulation 98 of the Representation of the People (England and Wales) Regulations 2001 as modified by Part 3 of Schedule 4 above applies for the purposes of a relevant election as it applies for the purposes of the referendum.
Absent voters listsAs soon as practicable after 5 pm on the 6th day before the date of the poll, the registration officer must provide the counting officer with the following lists, and any subsequent revised lists or revisions to the lists—
(a) the list of proxies for each relevant election;(b) the postal voters list for each relevant election;(c) the proxy postal voters list for each relevant election.Personal identifier informationWhere proceedings on the issue and receipt of postal ballot papers are taken together by virtue of regulation 65 of the Representation of the People (England and Wales) Regulations 2001, paragraph 7C of Schedule 4 to the Representation of the People Act 2000 has effect as if a reference to a returning officer were a reference to the counting officer.”

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[Lord Wallace of Tankerness]

I wondered when it was going to stop. In dealing with these schedules, it is important that these questions are asked. Perhaps I may start with the question raised about the schedule by the noble Lord, Lord Campbell-Savours, which was picked up by the noble Lord, Lord Grocott, with regard to the combination of the polls. As was articulated by the noble Lord, Lord Campbell-Savours, rule 5 provides for the cost of the combined polls to be equally apportioned between them. For example, in the case of a combined referendum on the voting system and the local government elections in England, the costs would be split 50:50 between the Consolidated Fund and the local authority concerned, except for those items that can be expressly and readily identified as being attributable to either one or the other.

As regards the costs that we are comparing, if you took the local elections—for the sake of argument, the Scottish Parliament election or the Welsh National Assembly election—on their own and added all the costs of a separate election with regard to the referendum, it is that compared with what the cost would be of combining the polls. I am advised that in calculating the cost, the assumptions take into account all the additional costs arising from the combination of polls. Overall, it would lead to a saving because, obviously, if the costs are split between the Consolidated Fund and the local authority concerned, there will some saving too for the local authority. I am advised that there is information in the Library of the House which sets out further detail on the costs.

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[Lord Maxton]

Given the assurance that the Minister gave last night that in the Scottish situation the parliamentary vote would come first, can he therefore say that in terms of ballot boxes there will always be two in Scotland—one for the Scottish Parliament elections and one for the referendum? If there is not, there are some areas—particularly, oddly enough, in some of the more remote areas which the noble and learned Lord will know—where the transportation of boxes to the count is done by boat. This could cause problems if there were delays or whatever and the counting could not be started on one before the other was sorted out.

[Lord Wallace of Tankerness]

I do not quite follow that because if there is a delay because of weather or transport, it will affect both elections. I can recall times past when local elections in Scotland and Scottish parliamentary elections were on the same day. Even when there were separate ballot boxes, it was still necessary to check them both to ensure that a ballot paper had not inadvertently been put in the wrong box. I think that different colours of ballot papers are used so that they are readily identifiable. I would imagine—it would seem to be common sense—that, even where two ballot boxes are used, it would still be important to make sure that ballot papers had not been put in the wrong box. It is important that every vote is counted.

[Lord Campbell-Savours]

Does the Minister accept that it is bound to cost more money if there is one box which has to be separated in the counting station? Is there not a responsibility on the Government to try to save money?

[Lord Wallace of Tankerness]

My Lords, I do not necessarily think that it is bound to cost more money. But overall it is clear that there are savings to be made. As I have indicated, a note has been provided on this. If there is a relatively small electorate at a polling station, it does not necessarily make sense to have two ballot boxes. With regard to the question about whether there would be enough ballot boxes, the Electoral Commission is asking all counting officers to ensure that they have sufficient equipment to run the poll effectively, which obviously includes ensuring that a sufficient number of ballot boxes are provided to all polling stations in the United Kingdom.

[Baroness Liddell of Coatdyke]

I have a question for the noble and learned Lord which I was going to ask in relation to Schedule 7, but in the interests of trying to keep things moving along rapidly, I shall do so now. Will he address the issue raised by the Electoral Commission about the difficulty of a declaration in relation to the results of the Scottish parliamentary election? The Bill states quite clearly that there may be no declaration in the parliamentary count or any count until the verified ballot papers have been notified. If the count for the parliamentary election is done before the count for the referendum, will we not end up with a fairly enormous muddle where it will take some hours before there is any declaration on the parliamentary count? Will the noble and learned Lord undertake to take a look at this and perhaps respond on Report? Unnecessary complexity seems to have been built in.

[Lord Wallace of Tankerness]

I certainly undertake to come back and give some clarification to the noble Baroness and many others who are interested in this matter. I confirm what I said yesterday to the noble Lord, Lord Maxton—that it is intended that the result of the Scottish election should be declared ahead of that of the referendum. As I also indicated, it took some time to put together a Government in Scotland on the previous three occasions. Nevertheless, it is intended that that election should be the priority.

The combined rules in the Bill require all ballot papers to be separated for each of the three polls before the verification process can commence. Even if there are two polls, it still has to be verified that ballot papers have not been put in the wrong box. There are also provisions which require all ballot papers for each of the three polls to be verified before any of the counts can conclude. This ensures that all ballot papers will be accounted for and included in the appropriate count. If people cast their vote, it is important that it is then counted.

[Lord Howarth of Newport]

In that connection, I would be most grateful if the noble and learned Lord would deal with one other point: the position of the Government—on which we disagree with them—that the results of the referendum should not be declared constituency by constituency. What aspects of the arrangements for the count set out in the schedule are designed to ensure that it will not be possible for party agents and others who are present at the count, for very valid reasons, to make a pretty shrewd assessment of the sizes of the piles of ballot papers and to estimate the result constituency by constituency? What safeguards are built in to prevent that?

[Lord Wallace of Tankerness]

My Lords, I never cease to be amazed at the ingenuity of observers at counts in trying to work out what is going on. Even in European elections in the past where ballot papers have been verified on the Thursday night with the count deferred until the Sunday—and, in the case of the Highlands and Islands, the Monday—some people have still managed to have a pretty shrewd idea of the results. It might be asking the impossible, no matter what was put into statute.

A number of important questions have been asked. The noble Lord, Lord Foulkes, asked about the separate registers. There will be two registers, but an accounting officer, who has most experience of local circumstances, can decide to merge them. If, for example, he or she is aware that in a particular area some voters would be on one register but not on the other, they may choose to have one register. Each elector is marked to show which election he or she can vote in.

The noble Lord, Lord McAvoy, asked about the definition of the area of control of a presiding officer. The area of control is not covered by the Bill. The Electoral Commission feels that that would be better dealt with in guidance, as with all previous elections. That goes also for mobile hoardings. I am sure that those of us who have fought elections or been agents in them will recall that opposing parties or campaigns are not usually slow to object or make representations if they feel that some trickery is up whereby messages are being obscured by the other side. The Bill says “inside and outside” polling stations. I do not think that a 40-tonne truck will be able necessarily to obscure a notice inside a polling station.

[Lord Maxton]

As someone who, like the noble and learned Lord, has been involved in elections, I know that there is sometimes great variety even within the same constituency and even from one school to another. If I am a candidate and walk in with my rosette on my lapel, I am told to take it off in one school but not in the next. Are there any guidelines to be given on that?

[Lord Wallace of Tankerness]

My Lords, it is a matter of local discretion. Elections have worked well in these respects. When I fought the European election in 1979 in the south of Scotland, I was forbidden to wear my rosette in the Galloway part of the constituency but reprimanded for not having one when I went without it into the Roxburgh, Selkirk and Peebles parts—they thought that it had been a pretty colourless election up until then and wanted to see a bit of colour.

Schedule 5, as amended, agreed.

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Moved by

[Lord Wallace of Tankerness]

122G: Schedule 6, page 187, line 7, at end insert—
“( ) Regulation 121 of the Representation of the People (England and Wales) Regulations 2001 (S.I. 2001/341) has effect in relation to an Assembly election—
(a) as if, in the definition of “relevant Assembly election documents”, the reference to rule 69(1) of Schedule 5 to the 2007 Order included a reference to rule 52 of the referendum rules as applied by this paragraph;(b) as if, in paragraph (2), the reference to documents forwarded under rule 67(1)(h) of Schedule 5 to the 2007 Order were to documents forwarded under rule 50(1)(a) of the referendum rules as so applied.”

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Moved by

[Lord Wallace of Tankerness]

122H: Schedule 6, page 187, line 28, at end insert—
“Provision of registers etc to counting officerRegistersRegulation 98(8) of the Representation of the People (England and Wales) Regulations 2001 has effect as if a reference to a returning officer included a reference to the counting officer.
Absent voters listsAs soon as practicable after 5 pm on the 6th day before the date of the poll, the registration officer must provide the counting officer with the following lists, and any subsequent revised lists or revisions to the lists—
(a) the list of proxies for the Assembly elections;(b) the postal voters list for the Assembly elections;(c) the proxy postal voters list for the Assembly elections.Personal identifier informationWhere proceedings on the issue and receipt of postal ballot papers are taken together by virtue of paragraph 2 of Schedule 3 to the Welsh Assembly Order, Article 13(5) of that Order has effect as if a reference to a constituency returning officer were a reference to the counting officer.”

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Moved by

[Lord Wallace of Tankerness]

122J: Schedule 7, page 227, line 35, at end insert—
“Schedule 8 to the 2010 Order has effect—
(a) as if the reference in paragraph 1 to documents retained under rule 71 of the Scottish Parliamentary Election Rules were to documents retained under rule 50(1)(b) of the referendum rules as applied by paragraph 52 above;(b) as if the reference to that Schedule in paragraph 4(2) were to any enactment;(c) as if references to the CRO included references to the counting officer.”

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Moved by

[Lord Wallace of Tankerness]

122K: Schedule 7, page 228, line 18, at end insert—
“Provision of registers etc to counting officerRegistersParagraph 1 of Schedule 1 to the 2010 Order has effect as if a reference to a returning officer included a reference to the counting officer.
Absent voters listsAs soon as practicable after 5 pm on the 6th day before the date of the poll, the registration officer must provide the counting officer with the following lists, and any subsequent revised lists or revisions to the lists—
(a) the list of proxies for the Scottish parliamentary election;(b) the postal voters list for the Scottish parliamentary election;(c) the proxy postal voters list for the Scottish parliamentary election.Personal identifier informationWhere proceedings on the issue and receipt of postal ballot papers are taken together by virtue of paragraph 2 of Schedule 4 to the 2010 Order, paragraph 23(1) of Schedule 3 to the 2010 Order has effect as if a reference to a CRO were a reference to the counting officer.”

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Moved by

[Lord Wallace of Tankerness]

122L: Schedule 8, page 262, line 16, at end insert—
“( ) Where appropriate—
(a) a reference in any enactment to a list mentioned in sub-paragraphs (i) to (iii) of sub-paragraph (2)(a) is to be read as a reference to the combined postal voters list;(b) a reference in any enactment to a list mentioned in sub-paragraphs (i) to (iii) of sub-paragraph (2)(b) is to be read as a reference to the combined proxy postal voters list.”

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Moved by

[Lord Wallace of Tankerness]

122M: Schedule 8, page 267, line 14, leave out sub-paragraphs (1) and (2) and insert—
“(1) Where—
(a) a combined list is prepared as mentioned in paragraph 7(2), 8(2), 16(1) or 22(1),(b) the same copy of the register of electors is used as mentioned in paragraph 21(1),(c) a single list is used as mentioned in paragraph 24(1), 26(1), 27(1) or 28(1), or(d) a declaration made by the companion of a voter with disabilities (within the meaning of paragraph 25) relates to the referendum or Assembly election as well as a local election,rules 50(1)(b) and 52 of the referendum rules apply to those documents (and rule 58(1) of the Local Elections Rules has effect as if any reference to those documents were omitted).(2) Where a combined list is prepared as mentioned in paragraph 7(2), 8(2) or 16(1), rule 59 of the Local Elections Rules, so far as it relates to corresponding number lists, has effect as if references to the proper officer of the council were to the Chief Electoral Officer.”

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Moved by

[Lord Wallace of Tankerness]

122N: Schedule 8, page 267, line 25, at end insert—
“Schedule 3 to the Local Elections (Northern Ireland) Order 2010 has effect—
(a) as if, in the definition of “the marked register or lists” in paragraph 1(1), the reference to documents retained under rule 60 of the Local Elections Rules included a reference to documents retained under rule 50(1)(b) of the referendum rules as applied by paragraph 38 above;(b) as if references to the proper officer included references to the Chief Electoral Officer.”

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Moved by

[Lord Wallace of Tankerness]

122P: Schedule 8, page 271, line 16, leave out from “are” to end of line 18 and insert—
“(i) the packets, made up under paragraph 11 of Part 3 of Schedule 2 to the Local Elections Order, of any combined lists produced by virtue of paragraph 7 or 23 above;(ii) the packets made up under paragraphs 12 and 17C of that Part.”

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Moved by

[Lord Wallace of Tankerness]

122Q: Schedule 8, page 272, line 3, leave out “paragraphs 11 and 17C(b) were omitted” and insert “packets did not include the packets mentioned in sub-paragraph (3)(b) above”.

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Moved by

[Lord Wallace of Tankerness]

122R: Schedule 8, page 272, line 5, at end insert—
“( ) Regulation 115(1) of the 2008 Regulations has effect in relation to an Assembly election as if the reference to documents retained under rule 57(1A) of the elections rules included a reference to documents retained under this paragraph that relate to the Assembly election.
( ) Schedule 3 to the Local Elections (Northern Ireland) Order 2010 has effect—
(a) as if, in the definition of “the marked register or lists” in paragraph 1(1), the reference to documents retained under rule 60 of the Local Elections Rules included a reference to documents retained under this paragraph that relate to the local election;(b) as if references to the proper officer included references to the Chief Electoral Officer.”