Parliamentary Voting System and Constituencies Bill

Lord Campbell-Savours Excerpts

Wednesday 2nd February 2011 Lords Chamber

Debate on whether Schedule 4, as amended, should be agreed.

[Lord Campbell-Savours]

I wish to intervene in this debate following a contribution yesterday by my noble and learned friend Lord Falconer of Thoroton, when he drew our attention to that fact that large sections of the Representation of the People Act 1983 have been transferred into Schedule 4. That gave me cause to read Schedule 4.

As a preamble to my remarks, I suggest to the noble Lord, Lord Tyler, that we do not always move amendments to clauses and schedules on Bills until Report, because often it is important to get an explanation of those schedules and clauses prior to tabling amendments. That is precisely what I want to do on this occasion.

To begin with, I shall concentrate my remarks on Section 61 of the 1983 Act, on other voting offences, which is transferred on page 97. I am sorry to refer to a page number, but I am not a lawyer. Section 61, as modified in this proposed legislation, will say that:

“A person shall be guilty of an offence if”,

that person votes,

“knowing that he is subject to a legal incapacity to vote in the referendum”.

That is under new paragraph (a). Under new paragraph (b), it is an offence if he votes,

“knowing that he is or the person to be appointed is subject to a legal incapacity to vote in the referendum”,

and, under new paragraph (c), it is an offence if he votes for a person knowing that they are subject to a legal incapacity to vote. What is interesting about those provisions, which have been transferred from Section 61 of the original Act, is that, when I read through the whole schedule, I realised that parts of it were perhaps not enforced in the original 1983 legislation. Have there actually been prosecutions under these sections in the 1983 Act? Could the Minister establish whether that is the position?

Also on page 97—as I say, I am not a lawyer, so I have to refer to the page—in the wording transferred directly from Section 61, there is another part that is not clear; when I was discussing this with colleagues there was a little ambiguity about what it means. It says:

“A person shall be guilty of an offence if … he votes on his own behalf otherwise than by proxy more than once in the referendum”.

Some people might interpret that as meaning that a person has two votes for themselves. I wondered whether the Minister had considered the possibility of that being the case.

Schedule 5 sets out the position more clearly: it is illegal to vote more than once in the same referendum,

“unless you are appointed as a proxy for another person”.

The wording that is used in the 1983 Act has endured for the past 25 years, but I wonder whether anyone had sought to interpret it in the way that a minority might, which was not the intention of the 1983 Administration when they brought these sections into law.

Section 61 also says:

“A person shall be guilty of an offence if … he votes on his own behalf in person in the referendum when he is entitled to vote by post”.

I was unaware of this. My noble friend says that it cannot be right. If you look at Schedule 5, it is more clearly set out on page 166. The 11th instruction states:

“After receiving this postal vote, you cannot vote in person at a polling station in the referendum[s]* or election[s]*”.

I wonder how many people know that. I wonder how many people receive a postal vote, do not use it and walk into the polling booth to vote, not realising that, according to the provisions of this Act as I interpret them, they are breaking the law. I did not know that.

[Baroness Golding]

I did.

[Lord Campbell-Savours]

My noble friend knew but I can tell that there are others in the Chamber who did not.

[Lord Maxton]

I am not absolutely sure about this but I seem to remember that this happened to me once. I could take the postal vote with me and hand it in at the polling station, rather than be barred from voting, as such.

[Lord Campbell-Savours]

That may well be the case. There may well be an explanation as to how it can be done. All I am saying is that there will be some people who will have a postal vote, not use it and go into a polling booth to cast their votes. It may well be that Members of this House did so formerly; of course, they cannot vote now.

[Baroness Golding]

It will be marked by the returning officer on the sheet that they have a postal vote. Therefore, they will not be entitled to have another vote handed to them when they go to the polling station. That has always been the case, as far as I can remember, and it is still the case now.

--- Later in debate ---

[Lord Campbell-Savours]

That may well be the explanation. If so, that element of confusion in my mind is no longer of any relevance. However, I turn to page 102, where there is a particularly interesting section. Section 100 of the 1983 Act, “Illegal canvassing by police officers”, is largely transferred to the Bill. That section reads:

“No member of a police force shall by word, message, writing or in any other manner, endeavour to persuade any person to give, or dissuade any person from giving, his vote, whether as an elector or as proxy”,

but the Bill would delete “as proxy” and substitute “in the referendum”. It does not say “No member of a police force acting as a police officer”; it simply says:

“No member of a police force”.

If we were interpreting that literally, I would suggest that it meant that, as a police officer, you cannot,

“by word, message, writing or in any other manner, endeavour to persuade any person”—

that could be a friend or relative—

“or dissuade any person from giving, his vote, whether as an elector”,

in the referendum. I would have thought that that was unenforceable, so why is it in law? Why does it remain in the 1983 Act in that form when there have probably been no prosecutions—unless I can be corrected—over the 27 years since the legislation was originally introduced?

The transferred Section 111, on page 102 of the Bill, is headed, “Prohibition of paid canvassers”. It states:

“For ‘an election’ substitute ‘the referendum’”.

In other words, the Bill has been made to mimic the provision in the 1983 Act. Section 111 of the 1983 Act states that it would be an offence:

“If a person is, either before, during or after an election”—

“the referendum” is substituted for “an election”—

“engaged or employed for payment or promise of payment as a canvasser for the purpose of promoting or procuring a candidate’s election”;

we are talking about the referendum in this case. However, some people who are campaigning will be paid—I presume this applies in the yes campaign, and perhaps even in the no campaign—to carry out precisely that function. In the 1983 Act this comes under the heading of “Prohibition of paid canvassers”, but what is a canvasser in terms of interpretation of the law? Someone seems to have gone through the 1983 Act, lifted all the sections, deleted the words “election to Parliament” or whatever, inserted “referendum” and perhaps not thought through in great detail where that section is relevant to the campaign on the referendum that is to take place in May this year. That is all I have to say at this stage in the debate.

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[Lord Howarth of Newport]

One can understand that. It is a little difficult in legislation to draw the line between what people do in their public official capacity and what they may do in their personal capacity. It will be interesting to hear the Minister’s thoughts on whether this legislation is well framed to meet the circumstances of today.

My noble friend also drew attention to the prohibition against paid canvassers. I must confess that even after decades of political activity, I was unaware of this prohibition. It seems to me that it is quite commonplace, in all political parties, for people who are paid employees—paid functionaries—of the political parties to engage very actively indeed in canvassing and in the organisation of canvassing. Again, it would be helpful to hear from the Minister whether he has any concern that this prohibition, which has been long established in election law—at least since 1983—is in fact regularly and routinely ignored and whether it is sensible simply to re-enact it for the purposes of the referendum by transferring it from the 1983 legislation.

[Lord Campbell-Savours]

Perhaps it would be helpful if the Minister could assure us that when the law in this whole area is being further revised, the 1983 Act and its provisions might well be subject to reconsideration. We are not tying him down, but there are sections of that law which now look a little dated and it might be worth considering them more widely.

[Lord Howarth of Newport]

My noble friend Lord Campbell-Savours has done the Committee a good service by drawing our attention to the possibility that what we have seen is a cut-and-paste job. We have seen the transference of slabs of the 1983 legislation into this 2011 legislation. It would be helpful to know just how much thought has gone into this and whether the Minister thinks there is any case for reviewing these schedules before the Bill comes back on Report to make sure that he and his officials are entirely happy that in all aspects they make good practical sense.

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[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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Debate on whether Schedule 5, as amended, should be agreed.

[Lord Campbell-Savours]

I wonder whether the noble and learned Lord can answer a few questions on Schedule 5, which refers to combined polls and states:

“The cost of taking the combined polls (excluding any cost solely attributable to the referendum or to a particular relevant election), and any cost attributable to their combination, is to be apportioned equally among them”.

I presume that means among the authorities concerned, but perhaps the noble and learned Lord can tell us exactly what it means in these circumstances. If it is a question of apportionment and different sources of money are to pick up bills, I presume that there is an apportionment procedure. Can he explain what that procedure is and could it lead to dispute? If local authorities are contributing to the pot, disputes may well be possible. The 1983 Act may well make provision for that, but I have not been able to find specific reference to apportionment in this context.

In Schedule 5, on page 141, there is reference to ballot boxes under paragraph 18, which states:

“If the counting officer thinks fit, the same ballot box may be used at the polls for the referendum and the relevant elections”.

In other words, we will have a combined ballot box in certain polling stations receiving both referendum votes and other votes. There may well be circumstances in the local authority where some might argue, for whatever reason, that they want that because of its implications for the arrangements in the counting stations.

One would have thought that it is better to have two boxes separated in advance as against placing the responsibility on the counters in the counting stations to divide the ballot papers themselves. Are the Government prepared to issue guidance on whether they would prefer that a particular approach was adopted, as against giving the counting officer responsibility in his or her discretion to decide whether he or she feels that there should be a single box or two boxes to collect the votes?

Finally, on the same page, the title of paragraph 21 states:

“Guidance to be exhibited inside and outside polling stations”.

I raised that issue during our debates last night. The question remains unanswered. Paragraph 21 states:

“A notice in the form set out in Form 5 in Part 3 of this schedule, giving directions for the guidance of voters in voting, must be printed in conspicuous characters and exhibited inside and outside every polling station”.

What I was on about last night, and I repeat my concerns today, is what happens if those who are rather keen on securing a particular result decide to drive a huge 40-footer artic truck with big signs saying, “Vote yes for AV”, or otherwise, and park it right outside the polling station door? In general election campaigns, people plaster candidates’ names on huge hoardings of that nature which are mobile, but I wondered whether on this occasion, because of the highly controversial nature of the question being asked in the referendum, there might be those who decided to conduct their campaign by using those mobile hoardings. Is there not a need to issue some guidance to polling clerks? Clearly, they would have to be subject to the law as to what they should do in such circumstances.

[Lord McAvoy]

My Lords, I return briefly to an area that I mentioned last night on which I did not get a response from the noble Lord, Lord Strathclyde. I accept that I raised what was probably a unique set of circumstances and I would not expect the Minister to have an answer at his fingertips. I could go through the detail again, but in the spirit of the understanding that we have, I will say only that it is about the definition of the area of control under the authority of the presiding officer. At page 137, the Bill states:

“A relevant officer is … in the case of proceedings at a polling station, the presiding officer”.

My point is similar but not identical to that made by my noble friend Lord Campbell-Savours about the definition of the area of control if activity is taking place, such as voters being approached as they head towards the polling station. At one of the polling stations with which I was involved, the presiding officer and the police had genuine uncertainty and doubt about getting involved in that. If there is activity like that, which is not desirable, although I am not sure about whether it is illegal, or if a complaint is made, does the presiding officer have any authority over it?

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[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.

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Debate on whether Schedule 10 should be agreed.

[Lord Campbell-Savours]

In the spirit of constructive co-operation which we on this side have been practising and advocating over the 17 days in Committee, for the benefit of the Committee I shall not speak further on this matter.

Schedule 10 agreed.