Electoral Registration and Administration Bill

Lord Pannick Excerpts

Monday 14th January 2013 Lords Chamber

Moved by

[Lord Pannick]

53: After Clause 17, insert the following new Clause—
“Voting procedure
(1) Schedule 1 to the Representation of the People Act 1983 (parliamentary elections rules) is amended as follows.
(2) In paragraph 37 (voting procedure) after sub-paragraph (6) insert—
“(7) A voter who is in the polling station or in a queue outside the polling station for the purpose of voting at the time specified for the close of the poll shall be entitled to apply for a ballot paper under sub-paragraph 1 above and a ballot paper shall be delivered and the voter entitled to vote in accordance with this paragraph.””

[Lord Pannick]

My Lords, this amendment is tabled in the name of the chairman of your Lordships’ Constitution Committee, the noble Baroness, Lady Jay of Paddington, and three members of that committee: the noble Lords, Lord Lexden and Lord Lang of Monkton, and myself. The amendment addresses a mischief that occurred at the previous general election and which may recur at future elections, however careful the preparations.

The mischief is that eligible voters who present themselves at the polling station before the close of the poll at 10 pm are unable to vote if the relevant officials do not issue them with the ballot paper to which they are entitled by 10 pm. At the previous general election in 2010, some 1,200 voters queuing at 27 polling stations in 16 different constituencies were adversely affected in this manner.

Your Lordships’ Constitution Committee considered the matter. We concluded that eligible voters who present themselves at the polling station before it closes at 10 pm should not be denied a vote because they are not given a ballot paper by 10 pm, perhaps because many other voters arrive at or around the same time, or perhaps because the administration of the polling station is less than efficient. The right to vote is precisely that—a fundamental right. It should not be defeated by circumstances outside the control of the voter. Indeed, when we are rightly concerned to do everything possible to encourage people to vote, we should not be putting obstacles in the way of eligible voters who do make the effort to attend at a polling station and who are then frustrated by their inability to cast a vote.

The Electoral Commission has expressed its strong support for this amendment for very similar reasons. The amendment commands, I think, widespread support across the House. The arguments which have so far been presented by the Government in answer to the amendment are, your Lordships may think, very weak indeed. First, it is said by the Government that the voter need not wait until just before 10 pm. He or she could or should vote earlier. However, for many people, voting early is not an option because of work or family commitments. In any event, close of poll is 10 pm. Voters should not be required to guess how far in advance of 10 pm they need to attend at the polling station in order to be sure of being allowed to vote.

The second argument presented by the Government is that such a change in the law would cause practical problems. That is very unconvincing. All that needs to happen is that at 10 pm the polling officer closes the door of the polling station, or if, unhappily, there is a queue outside, stands at the back of the queue to ensure that anyone arriving after 10 pm cannot join the queue. The Electoral Commission has pointed out that the Scottish Government introduced such a reform in 2011. At the Scottish council elections last year, the change in the law enabled voting by three people who arrived by 10 pm but would otherwise have been denied a ballot paper. There were no practical difficulties. The Electoral Commission issued sensible and practical guidance to presiding officers.

The third argument advanced in opposition to this change in the law is that it is unnecessary, as the lessons have been learnt from the experience of the 2010 general election. The answer is that, however good the preparation may be, there is always a risk of a queue building up which prevents one or more eligible voters from voting because they have not received a ballot paper by 10 pm. Issuing a ballot paper may take a minute or two and, if several people arrive in the period just before 10 pm, a queue can easily build up. The risk of a queue is all the greater if ballot papers are being handed out for local as well as general elections. The Electoral Commission has rightly said that,

“no degree of planning alone can entirely mitigate the potential risk of queues at the close of poll”.

The final argument which the Government advance is that not many voters will be adversely affected. However, even one eligible voter denied a vote in these circumstances is one too many. The Government cannot have it both ways. They cannot say both that very few voters will be affected and that the amendment will cause practical problems. This amendment is correct in principle, it is workable in practice and it is much needed. I beg to move.

[Baroness Jay of Paddington]

My Lords, as always, the noble Lord, Lord Pannick, has presented the amendment with enormous clarity and great conviction. As chair of the Constitution Committee, I can say that we have been working on this question for some time. We held a stand-alone inquiry on it in the autumn of 2011 and published our first report in January 2012. The most interesting thing about the difference between the report that we issued then and our subsequent scrutiny report on the Bill that is before your Lordships’ Committee this evening is that the Electoral Commission changed its mind between the two reports. That is significant. It looked at the evidence that we had taken and engaged in extensive correspondence and “offline” discussion with us and came back in October with the report from which the noble Lord, Lord Pannick, has quoted extensively. I think that it was convinced by the arguments that we made—I am sure that it was by others, too, and took other evidence—and, at the same time, the Government, as the noble Lord, Lord Pannick, has said, have continued to advance the same arguments. We heard those arguments last Wednesday when Chloe Smith represented the Government at a meeting of the Constitution Committee and put forward precisely the arguments which the noble Lord, Lord Pannick, has described.

It seems obvious that the fundamental right to vote is the question on which we should focus, and that the law in relation to this matter focuses almost exclusively on the rights and responsibilities of the statutory role of a returning officer and not on the right to vote. If one looks at it from the perspective of the voter, as the noble Lord, Lord Pannick, again has said, we can be talking about small numbers, but it is worth remembering that the Electoral Commission reckons that around 1,200 people were affected in 2010 by the law as it stands and the individual is very important in this respect. I would just add—not that it is significant in terms of statistical comparisons, but it is still relevant—that, in 47 constituencies in the 2010 election, fewer than 1,200 votes formed the majority, and in 28 constituencies, fewer than 600 votes formed the majority. In a sense, this can be significant, and if one puts value on the individual vote, as I certainly do, then the human right to vote is clearly very important.

The argument which was very current before our discussions with the Electoral Commission last year was that the law as it stood was secure. The Constitution Committee challenged this because when we looked at the two cases that were being relied on at that stage—one from 1901 and one from 2001, almost exactly 100 years later—it was very clear that these depended on the impact and role of the returning officers and not on the individual voter. We think that the time has come to achieve clarity about the rights and responsibilities of the individual voter, which could be done by this simple amendment. The noble Lord, Lord Pannick, has already referred to the example of Scotland. I would refer also to the example of the United States, where in the presidential elections last November there were certain polling areas where queues were in place two hours after the official closing of the poll and yet the votes were still counted. This is something that we need to look at very swiftly and in time for the 2015 election.

--- Later in debate ---

[Lord Taylor of Holbeach]

There is no experience there to suggest that there is any problem; the numbers involved are very small indeed. The noble Baroness—or possibly the noble Lord, Lord Pannick—talked about three voters. The note I have here says that possibly 10 voters may have been issued with a ballot paper after 10 pm under the more liberal regimes. This is nowhere near the scale of the 2010 general election situation here. I should say that in the United States, the majority of queues that form there are the result of mechanical voting and the breakdown of the technology used for voting. That is not the same sort of problem that we are talking about here.

I hope I have given noble Lords a run-down of the difficulties that Parliament would face if it chose to be more flexible in this area. I hope the noble Lord will feel free to withdraw his amendment.

[Lord Pannick]

I am very grateful to all noble Lords who have spoken in this interesting debate, not least to the Minister, despite his surprising failure to fulfil the expectation of the noble Baroness, Lady Hayter, and simply say yes to this amendment. The noble Lord recognised that at first sight, everyone would see the force of this amendment. I would hope that any reasonable observer would retain that opinion after considering the matter at length.

I cannot for my part see that the amendment would introduce any lack of clarity into this area of the law or that any minimal reduction in clarity should outweigh the fundamental right to vote. Concern about exit polls, deliberate queue forming and problems about what is a queue, all of which are factors to which the Minister referred, certainly demonstrate the noble Lord’s considerable debating skills. But whether these are realistic problems are matters on which I would take a different view. For my part, I would be very doubtful that a queue needs to be defined. I would be satisfied that a polling officer would be able to address any problem, not least with the assistance of any relevant guidance from the Electoral Commission and would know a queue when he or she saw one.

I will withdraw the amendment, not least because it would be inappropriate to vote on a 10 pm rule as the hour approaches 10 pm. There certainly would be no need for the doorkeepers to stand at the back of any queue were we to vote tonight. However, I say to the Minister that we will return to this matter on Report. I will carefully consider of course what he has said when I have read the debate. But at the moment I am wholly unconvinced by the arguments that he has put forward. I beg leave to withdraw the amendment.

Amendment 53 withdrawn.