Electoral Registration and Administration Bill

Lord Falconer of Thoroton Excerpts

Monday 29th October 2012 Lords Chamber

Moved by

[Lord Falconer of Thoroton]

1: Clause 1, page 2, line 8, at end insert “, but only if the Electoral Commission believes that the new electoral system is operating effectively”

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[Lord Falconer of Thoroton]

My Lords, so many noble Lords are leaving—this is a disappointing reaction to such an interesting Bill, which goes to the very heart of our democracy. And still people leave, in such numbers that there is a blockage at both doors.

We on these Benches support the principle of individual electoral registration, as we indicated at Second Reading. Indeed, as has been pointed out on a number of occasions, we legislated for it in the Political Parties and Elections Act 2009, in the last Parliament. We believe that it is desirable to have a complete and accurate electoral register. We also believe that individual electoral registration is a system compatible with modern society, and we recognise that it is outdated to rely on the head of the household. In essence, the issue between us and the Government in this respect is how you introduce it, and the timing of how you introduce it. You have to make very sure that you are not losing too many people off the register before you introduce it.

Moving to individual electoral registration is a significant change; it is the right change, but it must be implemented correctly. The risks to British democracy if it is not are too great. So despite supporting the principle, as I have made clear, we have genuine concerns. Our amendments, to be debated over the coming three Committee days, have been tabled to reflect those concerns.

Data published by the Electoral Commission and the Electoral Reform Society and acknowledged in the Government’s impact assessment for this Bill show that anything between 3.5 million and 7 million people are missing from the electoral register. That is an unsatisfactory base to start from, but the Electoral Commission also predicts, and the Government have acknowledged, that the shift to individual electoral registration could see an initial further hit to the completeness of the register by up to 30%. Experience from Northern Ireland bears this out, although I accept that there may be special factors that apply in relation to Northern Ireland that may not apply on the mainland.

We need to do all that we can to address these issues and to ensure that the electoral register is as accurate and complete as possible. So the guidance provided for in Clause 1 is good, especially during the transition from one system to the other and in the early stages of the operation of individual electoral registration. We welcome the specific requirement on the face of the Bill, but our concern is over why the role of the Electoral Commission has been undermined. The Government’s Bill gives a very significant amount of decision-making power to the Minister while bypassing the Electoral Commission and Parliament. We feel that a five-year transitional period for issuing guidance may be too short; the Bill’s Explanatory Notes are no more certain than deeming it “likely” that the new system will have reached a “steady state” in five years. And how do the Government define “steady state”? Given the levels of uncertainty associated with the transition, we argue that at the very least the Minister should be advised by the Electoral Commission on whether the system is operating effectively before guidance is withdrawn.

The Electoral Commission is an independent statutory body operating outside the political system with responsibility for electoral matters. We feel that it has a proper role in reaching an objective decision on these issues and that this should be written into the Bill before us today. Amendment 36 calls for annual registration reports to be produced by the Electoral Commission, presented to the UK Government and laid before Parliament with time set aside for Parliament to debate each report. In keeping with the theme of this group of amendments, which is related to improving the accuracy and completeness of the electoral register, Amendment 36 also addresses our concerns about unchecked ministerial power and the bypassing of the Electoral Commission.

Finally, Amendment 59, which is the third amendment in this group, calls for the results of the ongoing data-matching pilots, to which the noble Lord, Lord Wallace of Saltaire, referred in his opening speech at Second Reading, to be reported and evaluated before the full transition from the old to the new register takes place. According to the Government’s implementation plan for the Bill published in July, data-matching pilots have been running since August 2012, and data-mining pilots to identify potentially eligible voters who are currently missing from the register will begin in early 2013. I anticipate that the Minister will reject our call for a delay until the results of these pilots are known but will argue that a second set of data-matching pilots be commissioned. We accept that the second set of data-matching pilots should be commissioned but will the Minister acknowledge the concerns of the Electoral Commission about the findings from the first? In its evaluation report, the commission wrote:

“Our main conclusion is that these pilot schemes do not provide sufficient evidence to judge the effectiveness of data matching as a method for improving the accuracy and completeness of the electoral registers”.

We are serious about the status of the electoral register and believe that all action should be taken to ensure that it is kept as up to date, complete and accurate as possible. We are serious about the most appropriate bodies and individuals being given the power to advise and issue guidance. We are serious about proper parliamentary scrutiny of an exercise of ministerial power, particularly in an area that is absolutely crucial to the effective working of our electoral system, as everybody agrees. We look forward very much to hearing what the Minister has to say in response. I beg to move.

[Lord Forsyth of Drumlean]

My Lords, I did not have an opportunity to participate at an earlier stage in this Bill but these amendments, particularly Amendment 1, which relates to the role of the Electoral Commission, about which the noble and learned Lord has spoken so eloquently, is very important.

The Bill sets out the rules that would apply for Great Britain. In replying to these amendments, will my noble friend give us guidance on where the Government are in respect of the changes which are being promised by the Scottish Government in the conduct of the referendum on independence? This is important because at the Scottish National conference the First Minister of Scotland said that he would bring in a Bill which would provide for a new electoral register which would include 16 year-olds. It would not provide for 16 year-olds being able to vote in the referendum who were already on the electoral register: that is, the so-called attainers who reach the age of 18 at a subsequent election in respect of the existing roll. My understanding is that the publicly declared policy of the Scottish Government is to create a new register, which would be based presumably on individual registration by 16 year-olds, expressly for the purpose of the referendum on independence. This seems to me to drive a coach and horses through what this Bill is about, which is establishing a uniform system throughout Great Britain. I just wonder what the Government’s attitude is.

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[Lord Falconer of Thoroton]

Will the Minister remind the House of the legal provision in the Bill which would allow the Government to retreat from compulsory individual electoral registration if everybody agrees that the transition has not worked and there is an unacceptable reduction in the completeness of the register? The Minister is talking as if the transition is bound to succeed, but everybody accepts that it might not. What happens if it does not?

[Lord Wallace of Saltaire]

My Lords, I said at the beginning of my speech that we have been suffering from a decreasingly complete and accurate register over the past 15 to 20 years. The current register is very imperfect. That is the reason why I hope that we all agree that we need to make this transition. If we were to come to a point halfway through the process where we recognised that there were some severe problems, we would have to look at those problems because the current register is increasingly suffering from inaccuracy and incompleteness.

[Lord Falconer of Thoroton]

Will the Minister confirm that there would need to be a new Act of Parliament at that point?

[Lord Wallace of Saltaire]

I will have to consider that and come back to the noble and learned Lord. I recognise that part of the reason that we are resisting this is because if you then say no to the transition, what do you go back to? That is something that we clearly need to think through.

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[Lord Stoddart of Swindon]

Before the noble and learned Lord either withdraws or presses his amendment, perhaps I may say a few words. I have held back to hear the noble Lord speak from the Front Bench. We have had a very interesting debate. We have covered all sorts of aspects, from the Scottish aspect to whether we should return to the debate about central register and identity cards. We have discussed the nuts and bolts and the administrative problems that arise from the Bill.

The noble Lord said something very interesting about the motivation to vote, which is what concerns me. In a real democracy, the motivation should come from the heart and the mind, and because people believe that it is worth getting on the register and worth going out to vote. I am of an age when the register was about 90% accurate of those who were entitled to be on it. However, that has fallen considerably. People were on the register then because they wanted to be on the register, and they insisted that they were on it—and God help the registration officer if his or her name was not on the register.

Something has gone wrong, because people now do not do that. I go back—because I have fought many elections in my life, as other Members of this House have done. I remember the election of 1955 when in Reading Ian Mikardo was under pressure. In that election, because people were motivated to go out to vote and to be on the register, we got an 85% turnout—and of course he won. He was not supposed to win, but he won because of the people’s motivation. That was a good word that the Minister used. It does not matter what we say about going around and getting people on to the register; what we really need is the motivation of the people themselves to go on to the register and to believe that it is worth going out to vote because it makes a difference. At the moment, they see no difference between the political parties. They believe that it does not matter what they say or what they do because the Westminster and Whitehall elite will do what they think. As well as being concerned in this Bill about the nuts and bolts, the administration and even Scotland, we should really be thinking about whether the political class is doing sufficient to make people enthusiastic about getting on the register and going out to vote.

[Lord Falconer of Thoroton]

My Lords, the noble Lord, Lord Stoddart of Swindon, refers to a golden age when he himself sought office by election and when everybody was very keen to vote. Now we are in a different age, or so he identifies—maybe because he is no longer seeking election and, as a result, there is not that motivation on the part of people to vote.

It has been a very interesting and important debate. At its heart was the issue of what steps would be taken to ensure that the move from household to individual electoral registration would not lead to an undue reduction in the number of people registered. At the heart of our amendments was the idea that you have to have independent assessments made of that. What emerged in the debates was that the Government were so supremely confident that all would be well that they were removing the involvement of the Electoral Commission in giving independent advice, and there is no mechanism, other than a new Act of Parliament, to ensure—

[Lord Wallace of Saltaire]

It is important to understand that the concern is to prevent a further reduction in the completeness and accuracy of the register. I stressed very heavily in what I said at the beginning that part of the problem that we face is that the register has lost a good deal of completeness and accuracy over the past 20 years.

[Lord Falconer of Thoroton]

I agree with that, which makes it even more significant to ensure that there is no undue reduction in relation to the number of people who are registered.

The debate was very marked by the forensic power of some of the interventions. That of the noble Lord, Lord Forsyth, was very effective, because I have to say with respect—and I do not blame the Minister for this—no answers were given to the points that he raised. The noble Lord, Lord Rennard, gave a very well informed analysis of what the effect may be. My noble friend Lady Jay indicated what the constitutional importance of it is, while the noble Lord, Lord Maxton, urged us to vote in the way in which we vote in “Strictly Come Dancing”, although that may not necessarily be what we have in mind. I apologise to the noble Lord, Lord Tyler, on his 71st birthday, for not flagellating myself for my own historic failures. I can see that that was what he had in mind, and it would have been a birthday treat.

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Moved by

[Lord Falconer of Thoroton]

2: Schedule 1, page 16, line 20, at end insert—
“( ) The Minister must ensure that a formal appeals process is in place for any person in respect of whose registration a determination has been made under subsection (1).”

[Lord Falconer of Thoroton]

My Lords, this is a small but important point. It is a probing amendment, but I would very much like some assurance from the Minister.

Schedule 1 is about the registration and removal of electors on the register and Amendment 2 relates to an appeals process. We on this side of the House believe that people who are excluded from the register under the new system should have a legitimate right to appeal against the decision made by the electoral registration officer. The ability to cast a vote is a fundamental right and a key part of civic society. As the Government’s own implementation plan states:

“Registering to vote matters. It is the building block of our elections and an important civic duty. It provides people with an opportunity to elect their Member of Parliament, their local Councillor or Member of the European Parliament and is used as the basis for important activities like Jury Service”.

We believe that as many people who are eligible to be registered should be. I believe that the higher the turnout at elections, the better. I say that not just because I speak for a political party. As we have already mentioned today, and as I am sure will come up again as your Lordships’ scrutiny of this Bill progresses, there are known risks associated with the move to individual electoral registration. People will fall off the register, especially in the interim, and especially under this Government’s plan as so many of the safeguards that were in the 2009 Act, which my noble friend Lord Wills was instrumental in introducing and was referred to in the debate, have been scaled back.

In the spirit of tackling voter fraud, which we know is the key motivation behind this Bill, and behind its speeded up implementation plan, some of those who fall off the register will do so legitimately because they should not have been there in the first place. Of course, that is right and that is what should happen, but some people will be removed in error. Given the importance of the right to vote, and so the importance of being registered, those who do fall off should have an opportunity to appeal. Given the importance of the method, I would like to say a few things about the appeal.

At the moment, under the current system of registration, there is a clear appeals process. It derives from new Section 10A(3) of the Representation of the People Act 1983, and regulations set out in 2001. The relevant legislative base is sufficient for the current system but will these provisions be suitable once the transition has been made to individual electoral registration? Could they be fully applied, will any amendment be needed to the appeal provisions, and does the Minister see any merit in incorporating the 2001 regulations into the Bill, so as to provide assurance that there is a valid appeal process that Parliament has dealt with and approved? It is a probing amendment and I should be interested to hear the Minister’s answers. I beg to move.

[Lord Tyler]

My Lords, I want to contribute briefly to the discussion of this amendment on the appeals process but, before I do so, perhaps I should put the record straight in relation to the 2009 Act. There was not unanimity, despite what was said earlier, about the previous Government’s timetable for the introduction of IER. Both my noble friend Lord Rennard and I, during the Second Reading of the Bill on 18 March 2009, made it clear that we hoped there would be an acceleration of the programme, which is of course what the present Government are doing. Since then we have found that the previous register was so incomplete that there was a greater case for accelerating the process.

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[Lord Gardiner of Kimble]

My Lords, I thank the noble and learned Lord for highlighting the important issue of individuals having a right of appeal if they feel that they have been incorrectly removed from the register. This is similar to an amendment tabled by the Opposition in the other place, and on that occasion Wayne David accepted that there is an appropriate appeals mechanism in place. Indeed, he said he was pleased that the Government’s reassurances were clear.

I therefore confirm that Sections 56 and 57 of the Representation of the People Act 1983 already make provision for appeals against the decisions of registration officers in Great Britain, including decisions to remove electors from the register. Paragraph 17 of Schedule 4 to the Bill makes the necessary amendments to ensure that this continues to apply under the new system. I refer noble Lords in particular to the proposed insertion of new paragraphs (azd) and (aa) into Section 56(1) of the 1983 Act dealing with appeals against decisions under new Section 10ZE.

My apologies to noble Lords for the technicalities involved in that. However, there is provision within the Bill which I hope will reassure the noble and learned Lord and, on that basis, I ask him to withdraw the amendment.

[Lord Falconer of Thoroton]

I am not only reassured but moderately crushed by the reference to Mr Wayne David. On that basis, I will withdraw the amendment.

Amendment 2 withdrawn.

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[Lord Maxton]

My Lords, first, I take the opportunity, if I may, to say to my noble and learned friend on the Front Bench that I was not suggesting that we should vote in the same way as on “Strictly Come Dancing”. I was suggesting that we are still voting in a very conservative and old-fashioned way, whereas in other forms of national life, we do it differently.

I am a little concerned that there has been great opposition to my idea of a national register of some sort, but we are now talking about national insurance numbers. Who holds them? Where are they registered? Who keeps them? Who says, “That is your national insurance number”? Is that not a form of national register?

[Lord Falconer of Thoroton]

My Lords, this is an interesting and important debate. The original draft of the Bill in effect allowed the Minister to determine, without parliamentary scrutiny, what the identifier should be. The amendment advanced now by the Government in effect says that Parliament has to approve the Minister’s choice, as it must be approved by the affirmative procedure. Our Amendment 7 would provide that Parliament has to decide in primary legislation what the individual identifiers must be.

Everybody agrees, including the Government, that the first proposal is not acceptable and that it would be wrong for the Minister to be able to determine it. People would be worried about the extent to which it might be used for political advantage. The second option has the problem that statutory instruments are rarely rejected by Parliament, so it gives pretty big power to the Minister. The third option has precisely the problem identified by the noble Lord, Lord Tyler—it is very inflexible. I recognise completely that the identifiers chosen might turn out not to be sensible at the end of the day, depending on how the system operates.

This is such an important issue that we on this side are loath to give the Minister the power that comes from being able to determine it him or herself or by statutory instrument. Subject to the Minister’s no doubt persuasive arguments, I currently favour our amendment, but I wait to hear what the noble Lord has to say.