Parliamentary Voting System and Constituencies Bill

Lord Phillips of Sudbury Excerpts

Tuesday 1st February 2011 Lords Chamber

[Lord Soley]

I have considerable agreement with the noble Lord, Lord Newton, on the very difficult issues raised by this profoundly important set of amendments. If my memory serves me correctly, the last time that I discussed the matter with the Electoral Commission, it was talking about preparing a leaflet or pamphlet on this very issue. I think that the same issue came up on Second Reading, too. The difficulty is ensuring that the leaflet is right and unbiased. I phoned the Electoral Commission this morning to find out the latest position and, perhaps slightly worryingly, both the numbers that I normally use and get through on without any trouble were unobtainable. I am sure that there is a very good explanation and that I will be able to get through soon, but that means that I cannot tell the House where the Electoral Commission is up to on this important issue.

The amendments from the noble Lords, Lord Lipsey and Lord Rooker, spell out the right principle that we need material that says, in plain English, what an alternative voting slip will look like and so on. However, as soon as we get into explaining how the system works, we are in much more difficulty. It is very hard to write a leaflet on how a voting system works—particularly how it works in comparison to an existing system—without getting into a minefield of problems about possible outcomes or computations of the effect of one’s vote. There is a lot in Amendment 109A, in the name of my noble and learned friend Lord Falconer, that if we are to go down this road, having the Speaker’s committee involved in the Electoral Commission would be a good idea to provide some political insight. Otherwise, I can envisage that the leaflet that might come out could produce literally thousands of phone calls from political parties and their agents up and down the land saying, “This is biased”. That is only a short step away from the courts. The same point might be made about the amendment of the noble Lord, Lord Phillips of Sudbury—we would get into an absolute minefield.

I hope that the Government will give this serious thought. The Government may already have talked to the Electoral Commission—perhaps they had another phone number that worked this morning that I did not have. I know that the commission is exercised by the issue and is keen both to get the information out to the public about the importance of the referendum and to convey information to people about the different voting system. However, if we are to go down the road of requiring rather more detail on the effect, we have to look much more carefully at Amendment 109A in the name of my noble and learned friend Lord Falconer, which would at least provide for some political control. Without that, the Electoral Commission will, frankly, be hung out to dry and probably crucified as well.

I hope that the Government will give this important issue careful thought, given that, as my noble friend Lord Lipsey said, we have done so little on this and the changes will all come very suddenly. We must make a major effort to convey to the public the importance of this vote. On that point, my noble friend Lord Lipsey is absolutely right. The problem is what should be put into or left out of the leaflet.

[Lord Phillips of Sudbury]

My Lords, I completely support the spirit of this group of amendments. If all goes well—I nearly said “according to plan” but that would be giving a hostage to fortune—and the Bill gets through in time for the referendum to be held in May, there will be no time to lose. I think that every Member of the House concurs with the spirit that, if we are to have a referendum, we should ensure that it works as well as it possibly can and that as many as possible of our fellow countrymen and women take part in it.

I agree wholly with the amendment of the noble Lord, Lord Rooker, which would remove the discretion by simply obliging the Electoral Commission to provide information about each of the two voting systems. If the Government accept Amendment 108 in the name of the noble Lord, Lord Rooker, the first provision in Amendment 110ZZA, in the name of the noble Lord, Lord Lipsey, would be superfluous.

On the point made by the noble Lord, Lord Newton—he cast a fly in my direction, at which I leap—micro legislation is indeed food for lawyers and I am all agin it. However, I consider that the more dangerous provision in the amendment of the noble Lord, Lord Lipsey, in terms of “lawyerisation”, is its second provision, which would require that the leaflet,

“summarise the main arguments for and against first-pass-the-post and the alternative vote”.

There is much more room for lawyers to haggle over that before Her Majesty’s courts than there is over the “impartial and unbiased” provision. However, I suggest that the noble Lord, Lord Lipsey, should sleep on his amendment, given that its only essential provision—that is, the distribution to all households—should be taken care of by the amendment of the noble Lord, Lord Rooker. If the Electoral Commission is required to provide information about each of the two systems, surely that means delivery of information to every house. If there is any doubt about that, a change can be brought forward at the next stage.

I sympathise with the noble Lord, Lord Soley, because I did exactly as he did and had the same rather ghostly result. I tried three Electoral Commission numbers, which were all disconnected. However, I was informed a week ago by the commission that it is not disconnected and that it will definitely produce a leaflet that will be delivered to every household, so perhaps we can sleep soundly on that.

The plain English idea must be a good suggestion. Describing these two systems in the best and most limpid form that John Bull can understand on a bad night is essential. That amendment would be a step in the right direction.

[Lord Davies of Stamford]

My Lords, before getting to the substantive remarks that I wanted to make, as we have heard two interesting speeches I wonder whether it might be in order for the Leader of the House, on behalf of the House itself, formally to draw to the attention of the Electoral Commission the fact that noble Lords on both sides of the House appear to have had considerable difficulty getting in touch with the Electoral Commission by telephone. That is obviously a rather disturbing situation, particularly when everybody agrees that the Electoral Commission must play the key role in keeping the public informed as we move forward towards this referendum—if, indeed, we do. Although it would be nice to think that the staff of the Electoral Commission spent their free time reading Hansard of either House, that may be a rather hopeful assumption to make.

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[Lord Pannick]

This matter should be decided by pragmatism rather than philosophy. I suggest to the noble Lord, Lord Davies of Stamford, that the contrast between paragraph 9(1) and paragraph 9(2) makes perfect sense. The Electoral Commission has a duty to inform people about the existence of the referendum and about how to vote in it, and so it should. It is given a discretion about whether it attempts to summarise the arguments on both sides. The reason it is given a discretion is because whether and to what extent it should inform people on those controversial matters depends on how much other information people are going to receive on both sides. As has already been said by many noble Lords, it depends on whether it can do that job impartially, which is exceptionally difficult, and it depends on the time constraints.

[Lord Phillips of Sudbury]

I hesitate to interrupt the noble Lord’s flow, but would he like to reconsider? He has just said that the Electoral Commission has the discretion to summarise the arguments on each side. I do not believe that that is what paragraph 9(2) says. The Electoral Commission has the discretion to summarise,

“information about each of the … voting systems”,

which is not the same as the arguments.

[Lord Pannick]

That is information about the detail of the competing voting systems which are under discussion in the referendum. It is one thing to say to the Electoral Commission, “You must tell people about the existence of the referendum, their right to vote, and when it is going to take place”. That is perfectly sensible and it must do that.

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Moved by

[Lord Phillips of Sudbury]

110ZA: Schedule 1, page 20, line 6, at end insert “including the facilitation of co-operation between the officer, the Electoral Commission and the officers to whom sub-paragraph (3) applies”

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[Lord Phillips of Sudbury]

My Lords, I move this amendment in a probing frame of mind. It refers to paragraph 10 of Schedule 1, which provides the nuts and bolts of the referendum arrangements. I sometimes think that they can be skimped in our deliberations. Paragraph 10 is headed, “Encouraging participation”. As I said earlier, I am sure that everybody wants that. Therefore, it is a very important part of the mechanics of the referendum.

My concern is that in paragraph 10, five individuals and tiers of officer are referred to: the Electoral Commission, the chief counting officer, regional counting officers, counting officers and registration officers. The last four—the chief counting officer and everybody down to registration officers—are under a duty and must,

“take whatever steps the officer thinks appropriate to encourage participation in the referendum”.

My concern, especially in view of the tight time scale in which the referendum is likely to be conducted, is that there will be a lack of co-ordination between all these different officers about what they do. You could get a right mess with each of them carrying out their duty to encourage participation, some in this way, some in that, some here, some there, often overlapping and often leaving gaps of encouragement. I therefore thought it fit to propose this amendment which will cast upon the chief counting officer a duty to, in effect, facilitate co-operation between all those bodies, not forgetting that in the same paragraph 10, all four sets of officers,

“must have regard to any guidance issued by the Electoral Commission”.

So it has its oar in as well.

It is as simple as that. We surely need somebody who has a primary role to facilitate co-operation between all these various people and organisations. Lastly, I point out that under the Political Parties, Elections and Referendums Act 2000, the chief counting officer is chair of the Electoral Commission. That is all I need to say. I beg to move.

[Lord Lipsey]

My Lords, I am not entirely sure why my Amendment 110ZB is grouped with the amendment tabled by the noble Lord, Lord Phillips, but it gives me a particular pleasure to follow him in the debate. We have heard only too little from his Benches in the course of this debate, and therefore I wish him well in his speech. I should perhaps add that he should mind how he goes on the way home. A vow of omerta has bound the Lib Dems together over this Bill, and he has, I am sure inadvertently, broken it by intervening for a whole two minutes this evening. So mind how you go.

My Amendment 110ZB is not terribly well related to Amendment 110ZA, but is about a quite different matter. It harks back to the stain that still hangs over our democracy from the May general election. Memories in politics are, alas, short, but not in this House, of course. Therefore, I hardly need remind noble Lords of what happened. In a number of constituencies—16 in all—people turned up at the polling station before the 10 o’clock deadline wishing to cast a vote in those constituencies. They were not allowed to vote. According to the Electoral Commission’s 20 May interim report on the matter, 1,200 voters were excluded from voting as a result of that cock-up.

For each of the 1,200 voters, the ban was absolute. It may not be a large percentage of the national total, but for a few days, our papers, no doubt exaggerating a little bit, were comparing us to a third world democracy. We could not even organise a vote, and when you see the way voters queue up in South Africa for hours and hours under a hot sun to exercise their right, and you find that in our own country people who have turned up on time are denied it, it leads to a shiver of shame going down one’s spine. The Electoral Commission’s interim report blamed poor planning, unsuitable buildings, contingency arrangements that were not triggered in time or proved ineffective and, incidentally, restrictive legislation that stopped those queuing getting ballot papers, even though they were in the polling station on time.

Planning for the referendum is in one sense at least perhaps more difficult than planning for a general election. Yes, we should all love to see a turnout for the referendum at least as great as that in the general election, but I do not think that many psephological experts think that is terribly likely. It really is terribly difficult to predict what turnout will be. You can imagine that the campaign starts with a poll showing a great gap between the various sides, and therefore fewer and fewer people plan to vote because they do not think their vote will make a difference. As it gets closer to polling day, it may be that polls start to narrow, and a whole load of people decide that they will after all go to the polls. By then, electoral officers will have made their dispositions and decided how many staff to have, how many polling stations and so on. In this case, the Leader of the House’s technique for deciding what the turnout will be—the same technique that he used for the number of seats—by choosing a nice round number out of the air is not that much worse than any other technique. There is a danger that the accommodation will not be sufficient for the number of people who turn out to vote on the day.

The Library tells me that we are still awaiting the final report from the Electoral Commission on last May’s debacle, but bits of it have leaked out. The Government’s response has left a nasty sniff in the air. The Times reported, even before the report came out on 11 November, that Nick Clegg, the Deputy Prime Minister, had turned down the proposal in the commission’s interim report for a change in the legislation so that those who turn up before 10 o’clock can vote, even if they have not cast their vote by 10 o’clock. He said that the answer to poor organisation was not to reach for the statute book. Of course it is not, but it seems sensible to have two barrels to your shotgun: to try to deal with the poor organisation and to change the legislation that inadvertently caused this problem. I am therefore a little sorry and a little surprised that this legislation—absent the amendment I am now proposing—does not seem to do anything about that shortcoming.

Whenever I propose an amendment of this kind, somebody stands up and asks whether I have consulted the Electoral Commission about it, and I always retort no, because we are in Committee and it is not the duty of a Member of this House to consult the Electoral Commission on every proposal he puts forward at this stage in a Bill. I am, and should be, slightly surprised that the Government have not consulted it. I am disappointed that I have not seen, although it may exist, any kind of response to such a consultation. This was a serious problem. It is not a joke. If it is repeated, it will cast permanent doubt on our electoral arrangements, and it is therefore absolutely essential that we make sure that there will be no repetition of this on 5 May.

I should have said earlier that there is one other reason why there could be a repetition. If the referendum goes ahead on 5 May, and it remains to be seen whether that will be possible, it will be quite a complicated election. At the polling station, they will be dishing out one set of papers for the election of Governments in Scotland and Wales and another set of papers for the referendum, and people will be coming up saying “Please sir, what do I do with that?”; “I don’t know that”; “I didn’t know I was going to get that”; and all that sort of thing. It would be quite easy to imagine circumstances in which the staff at the polling stations became overwhelmed by the sheer volume of queries.

I shall not try to have a vote on this tonight. I give way to the noble Lord.

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[Lord Anderson of Swansea]

My Lords, I follow the noble and learned Lord, Lord Mackay, when he says that he agrees with the intention of both these amendments. It may well be that the wording can be improved—and it probably can—but there will be general approval for the intention. I also begin by welcoming the contribution of the noble Lord, Lord Phillips, and indeed that of the noble Lord, Lord Rennard. Someone mentioned the vow of omerta. When we had a Liberal Democrat intervention in an area of policy which in many ways they have taken as their own, I was reminded rather more of the brave Horatius at the bridge:

“And even the ranks of Tuscany

Could scarce forbear to cheer”.

The noble Lord, Lord Phillips, mentioned the question of facilitation. This is clearly a possible problem because there will be a number of right hands and a number of left hands. It is important that this be a key role—even if the actual wording is not wholly appropriate.

I was puzzled by another matter in this same section. In paragraph 10(1), we are told that:

“The Chief Counting Officer must take whatever steps the officer thinks appropriate”.

At the end, in paragraph 10(5), we are told that:

“The Minister may reimburse any expenditure incurred by an officer for the purposes of sub-paragraph (1) or (2)”

On the face of it, this gives an unlimited expenditure for the worthy objects of this paragraph and goes against all the normal government policies of being frightened and hesitant about open-ended commitments. It is wholly unlimited. One’s mind boggles at what, in following up this worthy objective, a very zealous officer may wish to do. So I simply commend to the Government—

[Lord Phillips of Sudbury]

The key word that the noble Lord quoted is “may”. It gives a discretion to the Government as to what they reimburse, so the matter is not as open as he thinks.

[Lord Anderson of Swansea]

That is one way of seeking to limit the zeal of any particular officer. It may well be that there should be written into the clause some test of reasonableness or otherwise, but we have to have some limit.

The final comment I would like to make on the amendment is on the point made by my noble friend Lord Lipsey, which was supported by the noble and learned Lord, Lord Mackay of Clashfern. I had the privilege of being an observer, or monitor, at both the South African election in 1994 and the first free election in Namibia in 1989. What amazed me at the time was that many people who had not had the opportunity before—those who were non-white—had such enthusiasm to get to the ballot box. I recall seeing young men carrying their aged mothers on their shoulders to get to that ballot box. I recall the long queues of people waiting to vote. All of those, in fact, who were in the tent at the relevant time, were allowed to vote. For any democrat it was a wonderfully emotional and uplifting moment.

As the noble and learned Lord, Lord Mackay, has just said, it was very different when we saw the people who had been excluded from voting at the time of the last election. As a democrat, I was extremely happy to see the display of real anger on the part of those who were excluded. We wait with interest to see how the Electoral Commission will respond, but surely it is not beyond the wit of man, or woman either, to give out cards to those waiting in the queue at 10 pm to enable those who have made the effort to vote on time to do so. Indeed, everything must be done to encourage people to vote. Someone who is turned away at the last moment because there is a queue may, in the future, join the ranks of those who do not vote. Let us look very carefully at this in order to encourage democracy.

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[Lord Maxton]

My noble friend makes a good point because the chance of a reduced turnout is even further increased by that. Moreover, if we have to have this sort of electoral system and way of voting, maybe there is a case for switching the polling day from a Thursday to a Sunday because at least that would give people the whole day to cast their vote, whereas those who are at work on a Thursday have to do it after they get home.

I turn to the amendment tabled by the noble Lord, Lord Phillips. He is quite right to say that there should be somebody to do this. But whoever is in charge of the election, what he will have to decide—certainly in Scotland—is the order for counting the different sets of votes. I assume that the same people will count both the referendum and the Scottish parliamentary votes. There is already criticism in Scotland that, because the referendum for AV is being held on the same day, the announcement of the results of the Scottish parliamentary election may be put off for several days because they will want to announce both results at the same time. Whoever is in charge of the election will have to make the decision about what to count first. The various ballot papers will have to be sorted out, as my noble friend said, or will it be decided that the Scottish parliamentary election votes will be counted and those results announced first?

[Lord Phillips of Sudbury]

I hesitate to ask the noble Lord to give way again, but I think I can help him on that. Paragraph 5 of Schedule 1 gives the chief counting officer the power to direct regional counting officers and so on, and gives regional counting officers the power to direct counting officers within their region about the discharge of their functions. That will probably include directions about the sort of issues the noble Lord has raised. But of course that does not go across to paragraph 10, which is all about encouraging participation.

[Lord Maxton]

I gather that some returning officers in Scotland have already begun to complain that they do not know which votes they will have to count first, and that this is causing some confusion in their ranks. Maybe it is for the Government or the Electoral Commission to take a decision on this. However, I think that there will be some anger in Scotland if the results for who is to form the next Government in Scotland and who is to be the next First Minister in Scotland are delayed by the result of the decision on the AV referendum, if that is done first and the other results are delayed. For some of us, the idea of Alex Salmond being First Minister for even one more hour let alone one, two or three more days is more than we want, but the fact is that I would accept that decision if it is made. The power in the Bill may allow the officer to make that decision, but it would be a very important decision for him to make.

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[Lord Wallace of Tankerness]

I cannot accept the second part of what the noble Lord has said, because the Government accept that what happened in May last year was serious. There is no doubt about that. Anyone reading this debate would realise that the view on all sides of the Committee is that the situation was serious. I hope to reassure the noble Lord—who accepts that his amendment would not change the legislative basis for that—that there is a distinction to be made, given that it was accepted that in the cases last year the common factor was one of poor planning. In this case, there will be a chief counting officer, who will have a responsibility and already be aware—not least because of the dual role with the Electoral Commission—about the importance of this issue. I am sure the chief counting officer will be well aware of the sentiments expressed and the important and serious points made in this debate. If the noble Lord’s aim was to get a message across, his amendment has provided a very helpful forum and opportunity to get that message across. She has the powers, we believe, to provide the appropriate guidance, the appropriate training and the appropriate support so that these issues will be addressed and the kind of situation that we saw in May 2010 will not arise again.

Against that background, I ask the noble Lords not to press their amendments.

[Lord Phillips of Sudbury]

My Lords, I really did not want to make heavy weather of this amendment, but I have to say that my noble friend the Minister’s response gave a series of legal interpretations with which I have to disagree. It is unfortunate that I have to disagree, but I do, even though I know that he is advised in these matters and one normally accepts such advice to be beyond question.

The first argument advanced by the Minister was that paragraph 10(1) says:

“The Chief Counting Officer must take whatever steps the officer thinks appropriate to encourage participation”.

He said that such a provision allows the chief counting officer to direct the other officers—regional counting officers and so on—as to what to do and how to do it. I think that is simply wrong. There is no implication of a power of direction in that sub-paragraph. His second argument—

[Lord Wallace of Tankerness]

I think that I noted that, when undertaking the responsibility, the chief counting officer can use her power of direction under paragraph 5(5) of Schedule 1 to require action. I think that I emphasised the importance of co-operation—which is both permissible and happening in practice—but I referred to paragraph 5(5) in relation to powers of direction.

[Lord Phillips of Sudbury]

I was coming on to paragraph 5(5), but I am afraid that my first point stands. If the Minister looks back at Hansard, he will see that I am right.

Paragraph 5(5) of Schedule 1 explicitly gives the chief counting officer powers to direct counting officers in the discharge of their functions. I thought long and hard about this and consulted—if he will not mind my saying so—with the noble and learned Lord, Lord Mackay of Clashfern, who knows a thing or two about interpretation. We agreed that the reference there to the power to direct is with regard to the conduct of a referendum. If the Minister looks back on paragraph 5, he will see that it is about the conduct of the poll, the printing of ballot papers, the issue and receipt of postal ballot papers, verification and counting of votes cast—that is, solely and exclusively a power of direction on technical and practical matters.

Lastly, the Minister said that he thought that the situation would be endangered by my amendment because he said that, if there was a right of “knocking heads together” among these five categories of officer, it might involve consultation with outside bodies. However, there is no mandate whatever for that in my amendment. If the Minister says that I have got it wrong—

[Lord Wallace of Tankerness]

I apologise if I did not express the matter clearly. What I said was that one effect of requiring co-operation among certain named bodies is that it might raise a question about whether it is also permissible to consult other bodies that are not mentioned there. In other words, if you are mandated to consult A, B, C and D, it may raise a question if you wish actually to consult F.

[Lord Phillips of Sudbury]

There is no reference in my amendment to consultation. This is a power of facilitation and of co-operation among the five sets of officers mentioned. There is no question of consultation, implied or otherwise. This is solely and exclusively among these five sets of people.

I am not a happy mover, I might say, and I would be grateful before I withdraw the amendment if the Minister would agree that this needs further consultation between us. If indeed his arguments prove to be fallacious—he started by sympathising with the sentiment of my amendment—at least there will be the consideration that a further amendment could be brought back at the next stage.

[Lord Wallace of Tankerness]

I am more than happy to do that. Just looking at it briefly, I think that there is a difference of opinion—not as to intention, but as to our interpretation—and I am more than happy to try to resolve that with my noble friend.

[Lord Phillips of Sudbury]

On that basis, I am happy to withdraw the amendment.

Amendment 110ZA withdrawn.