Electoral Registration and Administration Bill

Baroness Hayter of Kentish Town Excerpts

Monday 29th October 2012 Lords Chamber

[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.

[Lord Martin of Springburn]

My Lords, we are in Committee and it is therefore good to explore these matters. I am worried about there being a penalty because when I was first allowed to vote at the age of 21 I was a journeyman on a journeyman’s salary. Now, however, people can vote at 18. We are talking about a young person of 18 having a fine imposed on him or her for not co-operating, and I worry about that. If the amendment said that it was to be someone over 21, I would be less concerned, but I worry because I have had experience of arguing and campaigning against the poll tax. Bearing in mind that boys and girls of 18—young adults—had to pay that the poll tax, which was had changed from a household debt to an individual debt, one of our big worries was that they would not have the assets to do so. We were proved to be right: when a youngster went into arrears, the parents would bear the responsibility of the cost so that the family would not be shamed by the sheriff’s officers turning up.

The danger here is that we are going to impose fines en bloc on anyone who is an elector. It might be argued that, previously, the householder had responsibility and that there was a fine there anyway. However, when someone takes a on home they realise that there are responsibilities tied to it. At 18 years of age, however, I can tell your Lordships that there was not much in the way of assets in my situation. Usually, as an apprentice, when you got your wages on a Friday, they were spent by Monday morning. That is what is going to happen to some of these youngsters.

Another thing is that when trying to get some young people to co-operate with filling in a form, we might cast our minds back to when we were 18 ourselves. The form that we got every year was a tax form and we usually did not bother filling it in because someone would tell us, “If you don’t fill it in, they tax you as a single person”, and we were single people. This amendment would cause problems to the registration officer because it is a catch-all. We are going to have concerns about those between 18 and 21. I would certainly be worried about supporting anything that would impose a fine on young people. The thing with electoral registration is that if you are not on the electoral roll, you cannot exercise your right to vote. I know that if a youngster should complain, “I’m not able to vote and I’m not happy with our Member of Parliament or local councillor”, their parents or someone else—even the electoral officer—might put this to them: “That’s your fault because you did not bother to fill up the forms”. But to impose a fine and to compare it with a car parking fine is erroneous. When you get a car, you have at least made a certain amount of funds available to yourself; that is not necessarily the case with a young person. When you go on the road in a car, you run the risk of putting it in a place where it should not be and getting a parking fine. If you put two hours’ worth of money in a meter and you are there for two-and-a-half hours, you take the chance that a parking warden will catch you. It is not a comparison of like with like. For those reasons, I would be uneasy to support a fine for that age group.

[Lord Wallace of Saltaire]

My Lords, we are now navigating the delicate area between voluntary and compulsory registration. I think that we all recognise that, for a British state which is by tradition a limited-government state in which citizens have a right not to be too closely engaged with it, this raises a number of very delicate issues.

The purpose of the civil penalty is to encourage citizens to fulfil what we all regard as their civic duty and to make it clear that there are consequences for them failing to do so. It is not intended that it should be imposed on every single person who for whatever reason fails to go through to the complete process. Indeed, the evidence is that prominent inclusion on the registration form of the words, “This is your civic duty. You are subject to a fine if you do not fill in the form”, significantly increases the number of people who fill in that form. That is particularly valuable. But to move on from there to pursuing everyone who fails to fill in the form accurately, or who refuses point blank after many attempts to fill in the form, takes us a little further down the road from voluntary to compulsory voting than many of us wish to go.

I think that we all recognise that one of the important aspects of the transition, which again takes us outside the immediate focus of the Bill but draws on the Northern Irish experience, is that we need to pay more attention to citizenship education—getting into schools and telling young people between the ages of 16 and 18 about what citizenship really involves. We should get them to want to make sure that they are on the register, which too few of them now do, while also perhaps explaining to them that, if they want to obtain credit in future, being on the register is one of the prerequisites for getting a good credit rating. So we are negotiating our way around a range of different factors.

I say to the noble Lord, Lord Rennard, that not understanding that you have to fill in the form as a defence for not applying is also a very delicate area. We know that there are not a insignificant number of voters who are functionally illiterate. We know also that there are a number of voters whose knowledge is English is not ideal. So there is a range of limiting factors. This part of the draft secondary legislation is aimed at those who generally have issues about understanding the requirement being placed on them, whether it is matter of literacy, learning difficulties or knowledge of English. We will look at the language very carefully between Committee and Report to take the noble Lord’s points into account.

In relation to the noble Lord’s Amendments 4 and 5, I emphasise that the civil penalty is intended above all to serve as an encouragement to apply. The Government’s preferred approach to reforms is to keep details of this sort out of the Bill, instead using secondary legislation and guidance to ensure flexibility. It will be for the Electoral Commission to design the forms and the envelopes used in individual electoral registration. Having collected a number of these forms from different electoral administrators over the summer, I am struck by the current diversity in the forms provided, some of which put the importance of civic duty and the potential threat of a civil penalty very prominently and others have it down in the bottom left-hand corner where people are much less likely to see it.

These proposed draft regulations set out a small number of requirements for the content of paper application forms and the invitations that are sent to voters. They include mention of the civil penalty in the invitation but it will be for the commission to decide how best to approach the prominence and wording. For example, it may be that testing shows that a gentle mention of the penalty in the initial invitation works best, increasing the prominence of the message with successive invitations. We are currently undertaking targeted consultation on this publication and we welcome views on the contents. A certain amount of testing is under way on how best to design the forms.

The Government are firmly resistant to Amendments 21 and 22, which seem ultimately to force registration officers to impose the civil penalty on any person who does not make an application to register. Their purpose is the same as that of my noble friend’s other amendments. They would reduce the capacity of registration officers to use their own discretion in judging whether to issue a requirement to register to a person who has failed to make an application to register after being issued with an invitation. Again, we feel that this would take us too far down the road towards compulsion. After careful consideration with key stakeholders, we do not think it appropriate to create a new civil penalty for individuals who, after being required to make an application, fail to do so. We therefore urge my noble friend to withdraw his amendments.

On Amendments 23 and 29, the noble Baroness will recognise the very firm reasons why, in an age where—happily at the moment—inflation is low we nevertheless do not wish to put details of this sort firmly into primary legislation. I am sure that the noble Baroness is too young to remember the old notice that one used to see in trains:

“Penalty for improper use £5”.

When that was first established in railway legislation, £5 was a great deal of money. By the time I was in secondary school, it was rather less money than before—although, when I went out to tea in the local manor house and was tipped £5, it seemed an awful lot of money at that time.

[Baroness Hayter of Kentish Town]

I hope the noble Lord can assure us that he never misused that facility.

[Lord Wallace of Saltaire]

Of course I did not. I would never have thought about it while the train was in the station. I am sure that noble Lords will be as familiar with the song around that as I am.

We intend that the civil penalty should be modest and reasonable. That is why the phrase used is that it should be in the same range as parking fines. The intention is that the amount of the fine should be set out in secondary legislation so that it is flexible. We do not intend and no Government would wish to have to introduce primary legislation on the electoral registration system every two or three years.