Overseas Electors Bill (Second sitting)

Glyn Davies Excerpts

Wednesday 24th October 2018 Public Bill Committees

[Christian Matheson (City of Chester) (Lab)]

I had covered most of the contents of the amendment last week, so I do not wish to repeat myself. I am keen that we make more progress in Committee today, Mr Robertson, with your guidance, leadership and permission.

I remind everyone that the amendment concerns the definition of a “resident”. Residence is an issue that affects domestic as well as overseas voters. Existing provisions include no clear definition of electoral residence, which is understood to mean a considerable degree of permanence. For example, someone with two homes who spends the same amount of time in each may therefore legally register at both addresses. That affects many hon. Members, who have a residence in London and one in the constituency.

We are now calling for clarity on the matter of residency. We are not alone. The 2016 interim report by the Law Commission recommended:

“The law on electoral residence, including factors to be considered by electoral registration officers, and on special category electors, should be restated clearly and simply in primary legislation”.

Two years later, the Government have not yet responded.

The Bill seeks to enfranchise millions of British overseas electors based solely on electoral connection to a past residence, but the definition of residency remains complex and vague. At the moment, a residence connects a person to a geographical area that has democratic representation. It provides a person with an electoral connection. There are questions, however, about untypical types of residency, such as an individual living in a mobile home or a boat, or couch surfing. Such cases can be difficult to capture with a universal understanding of “resident.”

A further special category of electors is categorised by the concept of notional residence, which ties an elector to a place even though he or she may not reside there. Such electors include merchant seamen, mental health patients, remand prisoners, service voters, overseas electors and homeless persons. Various legal devices are used to establish notional residence, notably a declaration of local connection.

In 2016 the Law Commission interim report cited one provisional view that

“one legal structure should govern all ‘special category’ electors.”

The detail of the law governing this special category is complex. There is widespread agreement that change is needed. The Scottish Assessors Association, representing registration officers in Scotland, stated that the law is “outmoded and contradictory” and called for a

“clear and simple restatement of the law”.

The existing law does not give a definition of “resident” but provides indicators for registration officers to come to their own view. The amendment seeks to clarify this critical area of law before enfranchising millions of voters. The amendment requires the Secretary of State to propose a definition, which is needed by overseas voters with no physical presence in the UK for more than 15 years.

[Glyn Davies (Montgomeryshire) (Con)]

The purpose of the Bill is to extend the franchise to British citizens overseas. Allowing citizens who were previously resident in the UK, as well as those previously registered, should they move overseas, goes a long way to achieving that. I suggest that to impose additional barriers in regulation goes against the grain of the measures set out in the Bill. The Minister will add a lot more information but I hope that, on the basis of what I have said and of her contribution, the hon. Gentleman will feel able to withdraw his amendment.

[The Parliamentary Secretary, Cabinet Office (Chloe Smith)]

It is a pleasure to serve under your chairmanship this afternoon, Mr Robertson. I thank the hon. Member for City of Chester for succinctly restating his arguments on a quite difficult subject. He was right to note today and last week that defining “residence”—what the amendment is about—is difficult.

As the Bill’s promoter, my hon. Friend the Member for Montgomeryshire, has set out, we who support the Bill do not want to put additional barriers in the way of people who want to register to vote in UK elections, and that is the principle we are putting forward. Our intention is that there should be a wide and open enfranchisement, so we are sceptical about placing additional barriers in the way, in the form of burdensome definitions that might introduce more complexity than solutions.

On a practical note, however, the question of the existing framework arises. The hon. Member for City of Chester explained that an outline is found in section 5 of the Representation of the People Act 1983. His argument is that we should create secondary legislation to go alongside that. I understand the arguments that have been made in other places, which are, as always, helpful contributions to the broader debate, such as those of the Law Commission and the SAA, but my alternative view is that it would be better to use ministerial guidance.

I draw the Committee’s attention to the new section 1G that clause 1 would insert into the Representation of the People Act 1985, which would provide that electoral registration officers must have regard to ministerial guidance in determining applications for overseas electors’ registration and renewal. It goes on to state what the guidance may cover, which includes determining whether a person satisfies the residence condition.

I think guidance is a better route than secondary legislation for assisting registration officers in the matter of how they may determine residence. I say that because I do not want to put additional burdens of complexity or time on those who want to register. My hon. Friend the Member for Montgomeryshire has already made that argument. Also, perhaps we should leave things to the registration officers, who know best how to do their jobs. We discussed in the previous debate how much we welcome and value the way they do their jobs, and the hard work they put in. In my view, guidance would support them in their task better than would the time and complexity involved in trying to define things for them in legislation. It is better to leave it to their professional judgment to gauge residency, given the complexity of the task that both sides of the Committee have acknowledged.

I hope that my comments have been helpful to the Committee, and that the hon. Gentleman will feel able to withdraw the amendment.

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[Christian Matheson]

Then with your permission, Mr Robertson, I shall follow the Minister’s lead and speak to amendments 19 to 27, which are in my name. They essentially repeat the amendments on declaration requirements, but relate to the renewal of an overseas voting registration. I believe that the Bill has a number of areas of weakness regarding renewal requirements. If an elector is renewing using a paper form or email declaration, the information already held by the ERO—except for date of birth, for security reasons—may be pre-populated. If the elector is renewing on gov.uk, they will be able to declare that the information pre-populated in the reminder sent to them by the ERO remains true, rather than re-entering their address, for example. That will further reduce the information required for a renewal. It is an attempt by the Government to make the renewal process easier. However, they must be careful to update the online processes.

The policy statement indicates that overseas applications can be renewed online if a voter declares that the information pre-populated in the reminder remains true. However, at present, only a new overseas application can be made online, as the online service is not available for the renewal of overseas applications. Instead, a renewal application must be made on paper. Alternatively, the applicant is required to go through the whole process of applying online as a new overseas application. These amendments are consistent with our other amendments and would make the process of re-registration more secure.

[Glyn Davies]

I understand the points that Opposition Members have made. We all agree that the only people who should be entitled to register to vote are those who are eligible. We have to have steps in place to ensure that registration is restricted to those people. The Bill includes a number of what I consider to be sensible and precautionary provisions to determine the identity of someone applying as an overseas voter for the first time or renewing their registration, which supplement the existing requirements of individual electoral registration and other provisions.

The proposals set out in these amendments go against the grain of the important change that the Bill aims to achieve. Our ambition is to make it not harder for British citizens to register or renew but more straightforward. The amendments would require all declarations from overseas electors to include two attestations. I submit that that is not proportionate. The Minister will give much more detail on these points, but I hope that on the basis of reassurances from me and from her, Opposition Members will feel able not to press their amendments.

[Chloe Smith]

I thank hon. Members who have taken part in this debate. It seems to me that this group of amendments is in large part about the difference between a “must” situation and a “may” situation. For example, the hon. Member for Nottingham North is proposing that a set of requirements must be fulfilled, as is the hon. Member for City of Chester. The opening position of the Bill is that those requirements may be fulfilled when registration officers require them. I think that is the key difference.

Two reasons have been offered for these amendments. First, the hon. Member for Nottingham North laid out that he believes there ought to be a higher burden of proof on overseas electors than on domestic electors. Secondly, the hon. Member for City of Chester said that he wishes to see consistency among registration officers’ work, rather than discretion. I disagree with both of those arguments.

First, the Government see overseas electors as equal to domestic electors and do not accept the principle that they ought to be treated differently—that is the principal point of the Bill. I will come on to the important points that have been raised about fraud. Secondly, as I said in the previous debate, we in this Committee want to convey great respect for the work that electoral registration officers do, which we do best by respecting their professionalism and their ability to use discretion. From that position, we are proposing that they may—rather than must—ask for a set of requirements.

I will move on to the detail of the amendments—forgive me, Mr Robertson, but it may take me a while, as there is a fair amount in this group. First, let us deal with registration requirements. At the outset I can say that the Government are absolutely committed to maintaining the integrity of the electoral register and ensuring that only those who are entitled to register have an entry, which I hope is a common starting point for all of us.

As is the case under the current system, overseas electors will continue to be able to register using the digital service on gov.uk, as well as by using paper forms or, in some cases, by telephone. As a matter of status quo they are asked for their name, date of birth and national insurance number, and a range of other information. There is a separate attestation process for those who are unable to provide an NI number, but it is not a standard point. Again, that is a difference with the proposals made by the hon. Member for Nottingham North.

The Bill sets out that the declaration must

“contain any other prescribed information and satisfy any other prescribed requirements”.

That may include other information that is requested or a requirement for the declaration to be attested if necessary. Existing provisions, which date back to 2001, set out that information requested by administrators can include, but is not limited to, name and present address, previous name if that has changed since the last application, and passport number in some circumstances.

On the specifics of national insurance numbers, at present overseas applicants who cannot provide an NI number or who cannot be verified against existing Government records are asked to provide an attestation as proof of identity. Under new measures, if they cannot provide a national insurance number, they may be asked to provide a certified copy of their passport or other documentation. If that is not possible, they will still be able to have their identity verified by another British citizen who is registered to vote in the UK, through providing an attestation.

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[Christian Matheson]

I am grateful for that; the hon. Gentleman speaks with experience as a former Minister in this area. In that respect, he is absolutely right. The one thing I will not do—not least because I have not tabled an amendment on it, but I do not think I would table an amendment even if I could—is to suggest that, as a consequence of this amendment, we should somehow change the rest of the electoral timetable and change the closing dates for nominations. That would certainly open up a can of worms for electoral registration officers. I am grateful for that point; it is something we would need to take on board.

I am also grateful for the idea that speedy business post is necessary. I do not put a cost on democracy. As soon as we start to count the cost of democracy, we call that democracy into question. I simply make the point again that I think the Government would be picking up the election costs of sending more expensive post. That would certainly be my hope, in the context of difficult times for local government finances.

The Opposition support the call of the Association of Electoral Administrators for the Government to consider whether the deadline for overseas voters to register should be brought forward, to allow sufficient time to process and check previous revisions of registers.

[Glyn Davies]

I think we would all agree that it is important to strike the right balance by providing a system that is both accessible to overseas voters and workable for electoral administrators. I believe that the Bill will do that.

The Government have committed to continue to work closely with electoral registration officers to understand how the process can best be supported. With that assurance, I hope the hon. Member for Nottingham North will withdraw the amendment.

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Question proposed, That the clause stand part of the Bill.

[Glyn Davies]

Clause 1 removes the existing 15-year time limit on British citizens voting in parliamentary elections, which is a very important principle. It makes no change to the eligibility to vote in different types of elections, such as elections to the European Parliament, local elections, mayoral elections, and police and crime commissioner elections, or to British citizens living in the UK.

[Christian Matheson]

We thought to test the hon. Gentleman and the Minister on clause 1, which is the main part of the Bill. We have raised concerns about the ability of overseas voters to register to ensure that registration is fair and honest. We have also raised concerns over the extra workload that will be placed on EROs. As things stand, the amendments have not been accepted and we accept the proposal of the hon. Member for Montgomeryshire that clause 1 stand part of the Bill.

Clause 1 ordered to stand part of the Bill.

Clause 2

Minor and consequential amendments and transitional provision

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to discuss the following:

That schedule 1 be the First schedule to the Bill.

That schedule 2 be the Second schedule to the Bill.

[Glyn Davies]

Clause 2 introduces schedule 1, which contains minor and consequential amendments, and schedule 2, which makes transitional provisions.

[Christian Matheson]

Much of the work of the Committee and the detail of the Bill is contained within clause 1. Clause 2 presents various minor and consequential amendments, as put forward by my good friend the hon. Member for Montgomeryshire—my hon. Friend the Member for Nottingham North has put this little worm in my ear that is stopping me from deciding whether it is Montgomeryshire or Monmouthshire, but it is Montgomeryshire. These are technical and consequential amendments and we see no reason why they should not stand part of the Bill.

Question put and agreed to.

Clause 2 accordingly ordered to stand part of the Bill.

Clause 3

Extent, commencement and short title

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[Christian Matheson]

Amendment 28 requests a report on the awareness of how to participate in elections as an overseas elector. We heard in the discussion of previous clauses about the dangers of overseas electors piling in as soon as an election is called. We discussed with the Minister the importance of electors participating early by registering as early as possible.

Based on the 2016 survey conducted by the Electoral Commission, it is clear that there remains widespread confusion about what it means to be an overseas voter and the eligibility criteria necessary to vote. This lack of awareness has the potential to create a significant barrier to casting a ballot. The survey found that there was widespread lack of awareness about eligibility requirements, with 31% believing that eligibility required receiving a UK state pension and 22% believing that it required owning a property in the UK.

Knowledge about voting eligibility is surely at the heart of our democratic society. The Government must act to inform British citizens about the eligibility of overseas voters. Indeed, the survey found that, among the overseas citizens eligible to participate in UK elections who responded to this survey, the overriding reason for not registering to vote or participating in UK elections is a lack of awareness of the process of both. Therefore, the amendment calls for a detailed report to be made on how to participate in elections as an overseas elector.

[Glyn Davies]

The amendment would delay the enfranchisement of many overseas citizens who are calling for the right to vote in our elections. On that basis, the amendment is unjustifiable, and I hope the hon. Gentleman feels able to withdraw it.

[Chloe Smith]

I echo what my hon. Friend says. The new clause makes the important point that we should work to raise awareness of voter registration and how people should take part in our democracy. However, it would be wrong to delay the implementation of the Bill while we conduct that assessment, which is what the amendment asks us to do. Too many British citizens overseas have been denied the right to vote for too long and it is not right to say that implementing the Bill must be contingent on a report and an exercise.

The Electoral Commission runs campaigns before elections to ensure that people are aware of when and how to register to vote and anything else they need to know. As part of its public awareness campaigns ahead of elections, it has noted that it will

“run activities overseas and work closely with the FCO and others to ensure that newly eligible British citizens understand what they need to do to register.”

The Government will work with the commission in communicating the new provisions. I hope billions of citizens around the world are following our proceedings from this Chamber as we speak, but if that is not the case, we have also committed to improving messaging on gov.uk, where people can find the information when they need it.

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[Layla Moran]

I absolutely share the hon. Gentleman’s concerns. I also share concerns about increased workloads in certain parts of the country, should it be the case that overseas voters are not evenly distributed. We can probably assume—it is more likely than not—that they will not be evenly distributed.

To reiterate, all that new clause 1 does is ask the Government to ensure that, at the first available opportunity after the next general election, they come back and commit to considering all those points. It is not enough just to allow the Boundary Commission to do that, because these two things must be considered together. The Boundary Commission cannot say whether it wants overseas constituencies; that is a matter for this House to consider, and it should be a matter for the Government to consider, in conjunction with the change to the number of constituencies.

[Glyn Davies]

I must say that I do not appreciate it when Opposition Members say things that I agree with, as that makes my position a little bit difficult, but I want to emphasise that—as has been a trend today—the points that are being made by Members on the Opposition Benches are all reasonable. Our aim in resisting them is that we want to maintain the credibility of the Bill—it is a Bill that will achieve wide support—and make sure that it goes through.

As with amendment 28, which was tabled by the hon. Member for City of Chester, these provisions would postpone the enfranchisement of many overseas citizens who rightly want to vote in our elections. I stress that the Bill is a single-issue Bill, and I think the amendments are a distraction from that. I hope that hon. Members will not press their proposals.