Electoral Registration and Administration Bill

Lord Rennard Excerpts

Monday 14th January 2013 Lords Chamber

In a democracy nothing is more important than to ensure that those who are eligible to vote are enabled to do so. If the fountain or well of democracy is tainted, so too is democracy itself. I beg to move.

[Lord Rennard]

My Lords—

[Lord Forsyth of Drumlean]

My Lords—

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[Lord Hart of Chilton]

I explained, I hope, a moment ago why what I am saying is relevant to the particular proposals of the Bill. It is for the House to decide its procedure. In the sense that I have found it completely compelling that it is relevant, it is for the House to decide, in due course, what the outcome of the debate should be. If the view of the House is that what I have said is irrelevant, out of scope, nothing to do with the Bill at all, then the voting will take place accordingly. If, however, there are people——and I suspect there are many—who agree with me then they will vote to the contrary.

[Lord Rennard]

The four Members from different parts of the House who signed the amendment may all have slightly different arguments to make about why we each support it, but we are all agreed that the electoral register on which the current boundary review is taking place is not really fit for that purpose and that the current review of boundaries should therefore be postponed.

This issue was the subject of fierce debate during the lengthy passage of the Parliamentary Voting Systems and Constituencies Bill, with many noble Lords saying that it was not fit for purpose then. However, most of us relied on the best evidence available at the time that the electoral register contained the details of 92% of the people who should be included on it. Since then, however, work done by the Electoral Commission, commissioned and paid for by the Cabinet Office, shows that across the country, only about 82% of the names that should be included on the register are presently on it and that there are wide variations between different areas. For example, in the London Borough of Lambeth, only about 73% of the names that should be there are on the register.

This electoral register provides the basis for boundary reviews, and it is now clear that, if we want to have equal-sized constituencies, we must have an electoral register for which every possible effort has been made to make it as complete and accurate as possible, and that special efforts must be made to tackle underregistration in some areas if that objective is to be achieved.

[Lord Naseby]

As a former leader of the London Borough of Islington, which is very similar to Lambeth, I can say that the electoral register over time has never been more than 70% to 75% accurate. What magical qualities are there now that will change the situation in boroughs that have a transient population, always have had and always will have?

[Lord Rennard]

Those of us who have followed in great detail the Committee proceedings on this Bill will know that I have argued at length, together with other noble Lords, for a large number of measures that could greatly improve the accuracy and completeness of the electoral register, particularly schemes of data matching and data mining, which would enable public and private databases—

[Lord Cormack]

Was it this purity of motive that provoked the Deputy Prime Minister to make his off-the-cuff statement on 6 August?

[Lord Rennard]

The Deputy Prime Minister’s statement on 6 August was clearly not off the cuff and noble Lords to my left should have been aware of what he was going to say in the event of other issues which took place.

If I might proceed with some of my arguments, I would also like to say that for some of these Benches, another argument is very important. In the long deliberations on the Parliamentary Voting System and Constituencies Bill, we considered the relative effects on the power of the Executive and Parliament of reducing the number of MPs from 650 to 600. My party has always considered the need to reduce the number of MPs in the context of issues such as greater devolution and decentralisation, and the reform of your Lordships’ House. Not all my noble friends behind me will agree on some key aspects of Lords reform, but we all want to see an effective second Chamber able to hold a Government, of any party, to account. The failure to achieve—

[Baroness Browning]

I am concerned at this linkage between Lords reform and the measures that the noble Lord is now espousing. I took the effort over the weekend to read 22 Days in May, by our colleague David Laws, who was part of the negotiations. In the book, I found nothing in those negotiations that links Lords reform with boundary changes.

[Lord Rennard]

My Lords, the constitutional package that resulted from those 22 days—or however long it was—of deliberation clearly linked together many aspects of constitutional reform. If I may be allowed to develop my argument, I am suggesting that there is a clear link between the accountability of government to Parliament and the number of MPs. It is the view of my party that the failure to achieve any measure of reform at all here means that the hoped-for increased ability to hold the Executive to account will not happen. It may even decline as the Prime Minister prepares to make many more nominations to this House.

With the so-called payroll vote approaching half the membership of the government side of the House of Commons, the power of government to control Parliament is effectively increased. I believe that the opposite should be the case. This is, therefore, not the right time to reduce the ability of the House of Commons to hold the Executive to account by reducing its membership. There are no signs that the size of the Government’s so-called payroll vote will be reduced and coalition government probably makes it less likely. Many in my party take the view that the reduction in the number of MPs proposed in the current boundary review should not take place without reform that would strengthen the legitimacy of this House.

The media would make too much of two coalition parties going into two different Lobbies today. But in countries across Europe where coalition is much more the norm, this is not so unusual and people understand that different parties vote in different ways on some issues, while agreeing on packages of measures where they can find agreement on what they both consider to be in the national interest.

On the whole package of constitutional reform set out in the coalition agreement, it was not possible to deliver what was promised in that agreement and in the gracious Speech following the general election. So my noble friends to my left should not be surprised that we are where we are today. Noble Lords who have followed our many debates on electoral registration will know that my consistent aim—and that of my party—has been to improve the process of electoral registration so that we have a system fit for the purpose of conducting elections and reviewing boundaries as and when required. The question that now must be considered is what is the link between the boundary reviews and the process of electoral registration being considered in this Bill.

It seems to me that the issues of electoral registration and boundaries are inextricably linked. As my noble friend the former leader of the House, Lord Strathclyde, stated when the Parliamentary Voting System and Constituencies Bill was debated,

“the boundary review will be based on the electoral register in force at the time of the review”.

He pointed out that all:

“Previous boundary reviews have used the electoral register”.

He also relied on the fact, which we now know to be incorrect, that,

“the registration rate in the UK is between 91 and 92 per cent”.—[Official Report, 26/1/11; col. 1040.]

If the Bill that we are currently considering is passed, we will soon have a very different electoral register—one that, according to the aims of all Ministers, should be both more accurate and more complete. It is right that we use the new registration system for the next review of boundaries.

In considering the scope of the Bill, I too have great respect for the advice that we receive in this House and I note that it is for the House itself to decide on the basis of conflicting advice. However, I also have long experience of electoral registration and administration issues. I need hardly point out that elections simply cannot be conducted without a process to determine constituency boundaries and that this amendment is about the timing of that process. It is an integral part of the process by which boundaries are revised and why the amendment is highly relevant.

I thought long and hard about the Clerk’s advice and alternative legal opinions. It seems to me that even if electoral registration and boundaries were not considered to be connected, this Bill could not be considered to have only one or two simple purposes— the basis of the view that the amendment may be out of scope. It is clear to many of us that the Bill is about more than one or two things, since it actually covers at least eight areas: first, individual registration; secondly, the timetable for elections; thirdly, polling stations and district reviews; fourthly, the performance of returning officers; fifthly, emblems to be used on ballot papers; sixthly, the right of police and community support officers to enter polling stations; seventhly, alterations to the postal vote regime; and eighthly—and relevantly—repeal of existing powers for a centralised, national electoral register.

This means that the Bill is open to this amendment and, with good reason, we on these Benches support it.

[Lord Crickhowell]

My Lords, as my noble friend the Leader of the House has reminded us, the Companion states in specific terms that it is expected, in the circumstances that have arisen, that the Clerk’s advice will be followed. He was absolutely right in the warnings that he gave about the possible unintended consequences of the actions now being taken. That seems to be one powerful reason for rejecting this amendment. It is not a sensible way to change the conventions and practice of the House.

I want to concentrate on a second reason for opposing the amendment, although I will say this about the comment made by the noble Lord, Lord Hart, about the information being incomplete and the register being inaccurate: of course, it is freely acknowledged that under the present arrangements the information is substantially out of date and often very substantially incomplete.

Last Wednesday in the Constitution Committee, I questioned the Deputy Prime Minister on the subject that we are now debating: the implementation of the Parliamentary Voting System and Constituencies Act. I do not refer to this exchange with any great expectation that I can persuade my Liberal Democrat friends to abandon their stated intention to support the amendment but because I think that noble Lords in other parts of the House should be clear as to why they are being asked to act in the same way.

Both in our committee last Wednesday and in the Political and Constitutional Reform Committee of the other place on 13 December, the Deputy Prime Minister made it quite clear that his decision had absolutely nothing to do with merit and was entirely due to a political judgment that the implementation of this measure must be postponed to keep,

“the overall balance of the packages of the things that we included in the Coalition Agreement”.

He rejected my opinion that the balance argument did not hold up and that a desirable Bill should not be dropped simply because the public had given “a big thumbs down” to the measures or because he had not persuaded the House of Commons that the House of Lords Reform Bill was a good Bill. He equally firmly rejected what I described as my “old-fashioned” point of view that you should support or reject a measure because of its merits or lack of them.

The Deputy Prime Minister could not have been clearer about the merits of the Act. At Second Reading in the other place, he had identified,

“three problems with the current electoral map. Constituencies vary too much in size, they are based on information that is out of date, and there are too many of them”.

He provided specific examples of these grave discrepancies, saying:

“On the broken scales of our democracy, 10 voters in Glasgow North have the same weight as 17 voters in Manchester Central”.—[Official Report, Commons, 6/9/12; col. 36.]

Later, referring to the number of Members of Parliament that we ought to have, he said, “600 is about right”.

In both committees, the Deputy Prime Minister said that he was strongly in favour of the Act and hoped that it would be implemented, but that he wanted its implementation delayed for a full electoral cycle. He wanted that to happen for one reason only: because Conservative Members of the Commons had by their votes blocked his House of Lords Reform Bill. He repeatedly asserted that they had done so despite being elected on a manifesto commitment to reform the House of Lords. My noble friend Lord Lang of Monkton pointed out that the Government voted in support of the House of Lords Reform Bill and tried to ensure Back-Bench support and that the manifesto commitment was to seek a consensus, which is totally different.

In my view, we are not dealing with two measures that can be put neatly on each side of the balance scales, but with a whole string of measures covered by the coalition agreement, some of which, to use the Deputy Prime Minister’s own words, the public had given “a big thumbs down” to.

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Moved by

[Lord Rennard]

39: Schedule 4, page 21, line 23, leave out “, so far as is reasonably practicable,”

[Lord Rennard]

My Lords, our Amendment 39 seeks to resolve concerns raised by the Electoral Commission that the wording in the Bill could weaken electoral registration officers’ existing duties.

It is welcome that the Government propose to add a duty to secure that,

“persons who are entitled to be registered in a register (and no others) are registered in it”.

This is effectively a duty to ensure completeness and accuracy, and I welcome that. However, we do not see the case for diluting that duty with a test that states,

“so far as is reasonably practicable”.

If those words were omitted, the duty would simply be subject to the existing test, which is to,

“take all steps that are necessary”,

making it far stronger. The Government argued at an earlier stage that the “reasonably practicable” test does not make any difference and that electoral registration officers will still comply. That begs the question: if it makes no difference, why change the wording? It is clear that having these words is more likely to dilute the duty than not having them.

As far as I know, no legal challenges have been brought to the existing test of,

“take all steps that are necessary”,

with, perhaps, a vexatious suggestion that an electoral registration officer should have taken an unreasonable step, such as coercing someone to fill in a form or something of that nature. It is of course understood that the steps taken should be reasonable, but we believe that all necessary steps should be taken, and to that end the words referred to in Amendment 39 should be omitted.

I would be grateful to hear from the Minister why he thinks there is merit in removing those words—or at least a reiteration of the assurance that there is no intent to change the purpose of those words, even if they disappear from the legislation. We should not like to hear that there is any intention to dilute the duties of the electoral registration officers, and these reassurances will need to be persuasive if we are not to return to this issue on Report. I look forward to hearing from the Minister and I beg to move.

[Lord Falconer of Thoroton]

My Lords, we have two amendments in this group. They chime with the point that the noble Lord, Lord Rennard, is making; namely, is the Bill intending to dilute the powers of electoral registration officers and the Electoral Commission?

Amendment 39A seeks to address concerns held by the Electoral Commission that Schedule 4 waters down the provisions of the Representation of the People Act 1983 that required electoral registration officers to take all necessary steps in carrying out their duties. Our amendment proposes to remove this subsection and is intended to give the Government an opportunity to explain their thinking on this, and it very much reflects the point made by the noble Lord, Lord Rennard.

With regard to Amendment 39C, this Bill downgrades the role of the Electoral Commission in the transition to and rollout of individual electoral registration. We have sought several opportunities to amend this Bill to give the Electoral Commission more power. This amendment aims to give power to the Electoral Commission to intervene where EROs are not performing to a sufficiently high standard.

However, interestingly, the Electoral Commission has now issued a statement saying that it feels that it does not need these further powers. We originally tabled this amendment in response to the Electoral Commission’s concerns, but it now says:

“In instances where the Commission has concerns about ERO performance, following a recommendation from the Commission, the Secretary of State or Lord President of the Council has a ‘power of direction’ to require EROs to comply with any general or special directions in relation to the discharge of their functions. To date this system has worked well and we therefore see no need for this to change when IER is introduced”.

The Electoral Commission says it is satisfied with this provided that it receives assurance from the Government that they are prepared to use the existing power of direction in cases where EROs are not fulfilling their duty to take all necessary steps to maintain the electoral register.

It is not a satisfactory position that the Electoral Commission not taking additional powers depends upon a Minister intervening in relation to what particular EROs are doing. It is a slower process; it depends upon the good will of politicians. Is it not better for it to be dealt with by a body that is independent of any political party? I would be interested to hear the Government’s views on these issues.

[Lord Gardiner of Kimble]

My Lords, first, I thank my noble friend for raising the issue of the general duty on registration officers.

The amendments to the 1983 Act set out in the Bill strengthen the existing duties on a registration officer while taking into account the requirements of the new registration system. The amendments to Sections 9 and 9A of the 1983 Act made by the Bill do not lower the standards that registration officers are expected to meet. Instead, they set out explicitly important requirements that are not expressly stated in legislation at present.

The qualification of “reasonably practicable” applies to the standard of completeness and accuracy of the register that must be reached—it must be as complete and accurate as is reasonably practicable. This is a high standard. To set it any higher would be to ask registration officers to achieve unreasonable or impracticable levels, which would not be right. It is simply not possible for registration officers to have perfectly up-to-date registers at all times and it would not be reasonable to introduce a requirement on registration officers which they would not be able to meet.

The Electoral Commission accepts that the changes proposed to Section 9A do not represent a watering down of the duties of electoral registration officers, but has asked the Government to make clear their intention behind the rewording of Section 9A. To offer that reassurance I will quote Mr David Heath from another place when he said that,

“far from diluting the requirements on registration officers, under the new registration system we are strengthening the existing duties”.—[Official Report, Commons, 27/6/12; col. 316.]

The change we are making does not weaken the duty in Section 9A. We have set out in draft regulations our initial proposals for what registration officers must do to encourage an application to register to vote. This includes as a minimum the sending of an invitation, two reminders, and the sending of a canvasser to encourage an application.

I believe that Amendment 39A has the same desired effect as Amendment 39. In addition, however, it would have the effect of removing the explicit duty to seek to include in the register those who are eligible to vote but are not currently on the register. Amendment 39C would give the Electoral Commission powers of intervention where they judge that registration officers have not taken all of the necessary steps outlined under Section 9A. However, it is not clear from the amendment what form this intervention would take.

We believe that the fulfilment of the requirements set out in Section 9A plays a vital role in improving the completeness and accuracy of our electoral registers, which we are committed to achieving; however, giving the Electoral Commission powers to intervene where this is not being done would be a significant change in its role.

The Commission already has powers to set and monitor performance standards for electoral services, against which electoral registration officers’ performance is measured. A failure to meet those standards could indicate a potential failure to meet the duty set out in Section 9A of the 1983 Act. In addition, Ministers may require registration officers to comply with directions relating to discharging their functions. It is also an offence for them to breach their official duty without good cause. To date this system has worked well and we see no need to change this or for any specific provision to be made relating to the discharge of Section 9A duties. For these reasons, I question whether the amendment is necessary in ensuring that Section 9A duties are fulfilled. For those reasons I ask my noble friend to withdraw his amendment.

I shall also speak to Amendments 43 and 45, which are minor and technical amendments. As a consequence of the changes to the canvass process under IER to be made by the Bill, we need to remove the reference to “the relevant date” from Section 49(6)(a) of the 1983 Act. That date is usually 15 October, which is currently the date of residence for the purposes of the annual canvass. Under IER the canvass will not be tied to a date. It is for those reasons that the Government will move Amendments 43 and 45.

[Lord Rennard]

My Lords, I thank the Minister for his assurances that there is no intention whatever to weaken the duties of returning officers in relation to the registration process. I hope that any information that emanates from the Electoral Commission in due course will emphasise that fact to returning officers. On the basis of his reassurances, I beg leave to withdraw Amendment 39.

Amendment 39 withdrawn.

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[Lord Rennard]

My Lords, I shall speak first to Amendment 58 in my name and that of my noble friend Lord Tyler. Unlike the intention of other amendments within this group, we do not wish to decide today that the transition to individual electoral registration need necessarily take longer than the Government hope. However we very much want to make sure that Parliament has the opportunity, if necessary, to lengthen the transitional period in order to protect the comprehensiveness of the register. That is the purpose of Amendment 58.

We understand from recent discussions we have held with the Electoral Commission that it will not be sure about the success or otherwise of this transition until some point in 2016. Therefore, we think it is highly desirable that there should be some opportunity to extend that period. We know that throughout the process the Electoral Commission will give advice to Parliament as the transitional phase continues, and Parliament will have regard to that advice, but we feel strongly that Parliament must be able to act upon that advice rather than just receive it. However we think it would unfair to say that the Electoral Commission should be the sole arbiter of whether progress towards individual electoral registration has succeeded sufficiently well that the register could be considered to be in a fit and proper state for the various purposes for which it is used.

The Committee has heard previously about our recommendations to try to ensure that the process is a success. We considered them on our first day in Committee. We on these Benches were particularly concerned about things such as the position of attainers—16 and 17 year-olds. We wanted to know how we can track down people in the private rented sector and how we might make use of the DVLA database of drivers to find huge numbers of adults. Even if we do not use the whole DVLA database, we are anxious to know how people who notify the DVLA that they have changed their address might be incorporated into the system of electoral registration.

All those different methodologies to try to improve both the accuracy and the comprehensiveness of the electoral register involve new technology and new processes, and we cannot tell at this stage how successful or otherwise they will be. The current round of pilots has yet to be properly evaluated. Although we want to make individual electoral registration a success under the timetable set out in the Bill, we think that it is important that there is a safeguard in such an important issue for our democracy, so that Parliament has the opportunity to say, “We are not sure that this process has been sufficiently successful for us immediately to change over to individual electoral registration exclusively and drop the carryover”.

We know from many debates how the electoral register is in a different state of order in different parts of the country. We would want to know that it is in a better state of order in all parts of the country before proceeding. We think that we need more flexibility.

We know that Ministers might even welcome the idea that Parliament has to approve the final completion of the transitional phase and the use of the new electoral register without carryover if it helps bring pressure to ensure that that transitional process is carried out successfully. It is not necessarily delay or dilution, but flexibility which we seek. We hope to hear from the Minister that consideration will be given to allowing Parliament to decide later in the process whether it is really safe to proceed as is envisaged for 1 December 2015 or whether carryover needs to continue for a little longer. We may be dealing with new boundary reviews starting on the register on 1 December 2015, and important elections are due in Scotland and Wales and many English local authorities in 2016. It is vital that the register is in good shape for those purposes.

Amendment 50 deals with the distinct issue of the treatment of postal voters in the transition to individual electoral registration. I have instinctive sympathy with the Government’s view, which the Electoral Commission appears to share, that the postal voting system may be more open to abuse and therefore ripe for reform than the in-person system. However, the purpose of the amendment is to test the evidence for that contention.

In 2006, the previous Government accepted an amendment in my name to the Electoral Administration Bill, now enacted, which greatly improved the security of the postal voting system by requiring anyone voting by post to sign a personal application to say that they wanted to vote by post and to sign an accompanying certificate with the postal vote so that we could be certain that the person who applied for the postal vote was the same person who was returning the completed ballot paper.

It is possible to see how voters impersonating people in person can more easily get away with impersonation. It is not difficult to go to a polling station, give a name and address and be handed a ballot paper. You might not choose the name of someone famous or someone who always votes, because they may turn up subsequently and dispute the fact that they have already been given a ballot paper and demand a subsequent ballot paper, and there may be an investigation, but we know that many people never vote. A party could be involved in an election, find out that someone has no intention of going to the polling station and vote on their behalf. Indeed, in my experience in Liverpool in the 1980s, when the noble Baroness, Lady Gould of Potternewton, was trying to organise reforms of the Labour Party in that city at the same time as I was trying to beat the then Militant-led Labour Party, there was widespread impersonation at the polling station organised by the Militants, who did not have sufficient support from ordinary voters but could impersonate large numbers of them.

It is not as simple as saying that voting by post is clearly open to fraud and abuse but that voting in person is not, but the Bill proposes that you must be registered under the IER system if you are to vote by post, but that you do not have to if you vote in person. I wonder whether that is justifiable and whether we should insist that postal voters are registered under the new system if they are to be able to exercise their right to vote in the 2015 elections.