Electoral Registration and Administration Bill

Lord Tyler Excerpts

Monday 14th January 2013 Lords Chamber

[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.

[Lord Tyler]

My Lords, I am very grateful to my noble friend. We strongly support the amendment. The fact that it is presented to the Committee by four very distinguished members of your Lordships’ Constitution Committee gives it rather special significance.

In general, we should trust the presiding officer in the polling station to use his or her common sense. It is their role to use their discretion in that respect. However, if anything, they should surely seek to give every opportunity to the elector who has come in good faith, and in good time in most circumstances, to vote.

I am reminded of an incident when I went at about 11 am to a very remote polling station in a draughty caravan in the middle of Bodmin Moor in a winter election. It was the smallest electorate in my then constituency; indeed, there were only 18 people on the electoral register, and 17 of them had long since voted at 11 am. Everybody knew that the 18th person had actually died in the last few weeks before the poll. Yet of course the presiding officer and his assistant had to stay there in that bitterly cold caravan for the following 11 hours.

I give that example because, of course, we do not know how many presiding officers in May 2010 used their common sense to give a ballot paper to those who were actually within the building and standing in a queue ready to vote, having been there perhaps for some time, without already being given a ballot paper. We only know about the ones who were kept out by those who thought perhaps they were doing precisely the right thing in the circumstances—the 1,200. However, in my view it is incumbent on this House and the Government to try to clarify this situation. It is clearly the case that in May 2010 a large number of people were disenfranchised by the circumstances of the particular polling station and by a sensible approach not being taken in the terms to which the noble Baroness so eloquently referred—the human right to vote in a democratic society.

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[Lord Taylor of Holbeach]

The noble Baroness makes an interesting suggestion. It is rather like the doorkeepers here keeping the doors open after eight minutes; in exactly the same way, it is quite difficult to close the doors. It is definable, though, and I accept what the noble Baroness says. It is easier to manage a building in which the writ of the polling clerks actually operates than perhaps a street scene, where it would be quite difficult for polling clerks to define to an individual person that they were outside the scope of the queue because they joined the queue after 10 pm. That is in effect what we are having to suggest, is it not?

[Lord Tyler]

I am grateful to my noble friend for what he has just said because it showed an openness of mind that I confess I have not previously witnessed from Ministers on this issue. I wonder if I could take this a step further: has he any evidence that every single presiding officer in every single polling station in the country did not take what I would regard as the common-sense view, when someone was standing there in the polling station ready to get a ballot paper when the clock struck 10 pm, and issue them with a ballot paper?

The Minister has referred to exit polls. I do not think that Parliament should worry too much about those who conduct exit polls. Those polls are taken only when people come out of the polling station, so frankly they are not relevant in the present circumstances to what we have been discussing. However, I am very encouraged by his openness of mind; perhaps with an appropriate tweak to this amendment, we might all make some progress.

[Baroness Jay of Paddington]

My Lords, before the Minister replies, I would like to add one sentence: one of the legal advisers to the Constitution Committee said that he thought it was beyond common sense to suggest that it was impossible for the parliamentary draftsmen to define a queue in terms that would be properly understood in an Act or a piece of law.

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[Lord Norton of Louth]

My Lords, in moving Amendment 55, I shall speak also to Amendments 56 and 57. As I would hope would be fairly obvious, Amendments 56 and 57 are alternatives should Amendment 55 not find favour. The amendments address the issue of the edited version of the electoral register. My starting point is that the current position in respect of personal data supplied by electors is not sustainable. Some electors find that they are included in the edited version, even though they have no wish to be included. Some find their personal data being made available through organisations selling data taken from the register, on occasion apparently even though they have opted out of being included in the edited version.

By introducing individual electoral registration, the Bill goes some way to addressing the problem. It means that each elector has to make a decision as to whether they wish to opt out of the edited version of the register, whereas at present the head of the household may make that decision, which could mean a decision taken, for instance, by an official on behalf of students residing in college. The Bill, however, does not go far enough. The retention of the edited version raises a fundamental issue of principle. It entails the harvesting and sale of personal data as a by-product of a civic duty imposed on citizens.

The Political and Constitutional Reform Committee of the House of Commons, as well as the Electoral Commission and the Association of Electoral Administrators have argued that the edited register should be abolished. As the Political and Constitutional Reform Committee has argued:

“Whatever benefit it might bring, we cannot justify the sale to commercial organisations of personal details gathered by the Government for electoral purposes”.

The Electoral Commission has reiterated its support for abolition of the edited version in its briefing notes on this Bill. As it notes, prohibiting the production and sale of the register is particularly important, given the need to maintain people’s confidence in the security of their personal details. In December 2011, the Guardian editorialised that the edited register,

“lingers on, a travesty of the democratic process that sullies the relationship between voter and state, and illustrates just how casually politicians think about democracy”.

There are then objections of principle to having an edited register. There are problems with the mechanism by which the names of electors are included. When the sale of the full electoral register was deemed illegal, the edited version was introduced with an opt-out provision. If one does not opt out of having one’s name included, it is assumed that one wants one’s name included in the edited register. The Government cannot be certain that those whose names appear in the edited version of the register want their names to be included. The extent to which the opt-out provisions are explained to electors appears to differ, but even if it was explained on a consistent and prominent basis, we still cannot be sure that the edited version comprises the names solely of those who wish their names to appear.

There are thus significant problems arising from the generation and publication of an edited register. At the heart of it, however, is an issue of principle. I am familiar with the arguments for its retention which are, essentially, practical arguments and are variously advanced in the magazine Parliamentary Brief and in the other place by Dan Rogerson. They do not engage with the issue of principle. The argument is that the edited version brings economic benefits because of the use made of it by commercial organisations. I understand that the Government were considering abolishing the register but have now been swayed by this argument. One would have thought that it was obvious why commercial organisations bought the edited register but this seems only now to have dawned on the Government.

There is a separate argument—essentially a public good argument—that some bodies use the edited version for altruistic reasons or for purposes that have a public benefit, such as tracing lost family members. I would have thought that the benefit is limited, given the scale of electors opting out of the edited register, and that there is a case for allowing bodies access to the full register where they can meet a public benefit test.

In response to the report of the Constitutional and Political Reform Committee, the Government said the arguments were “finely balanced”. In terms of principle, I am not sure that they are. I think principle trumps any commercial benefit. There is no public benefit in selling the edited register, other than a broad and incidental benefit in that it helps commercial organisations to trade, but that benefit would apply in all sorts of contexts where firms could operate in a way that conflicts with basic principles, be they in relation to the franchise or, say, working practices.

Amendment 55 thus prohibits the production and sale of the edited version of the register prior to the commencement of individual electoral registration in 2014. That is the clear-cut option. It gets rid of the edited register. That is my preferred option. If, however, the Government wish to persevere with an edited register—I would prefer that they did not—then Amendments 56 and 57 modify the existing arrangements. Amendment 56 is designed to get the Government thinking about who should have access to the edited register. It provides that only bodies designated by the Secretary of State as having a legitimate purpose for seeking access should be allowed to purchase it. My preference, as I have indicated, would be to abolish the edited version and introduce a public benefit test to allow bodies, other than presently permitted to do so, to have access to the full register. However, I put the amendment down to encourage reflection on the point.

Of the alternative options, Amendment 57 is the important one. This also engages an important principle. If—I stress if—the edited register is to be maintained, then it is essential that we move from an opt-out provision to an opt-in provision. In other words, electors should be included in the edited register only if they have explicitly given their consent to their inclusion. It is not sufficient to assume that they wish to be included if they do not opt out. Consent must be given rather than assumed.

The Government’s response may be that, although desirable in principle, there are practical difficulties, perhaps insurmountable problems, in introducing an opt-in provision. If that is the argument, then there is a clear alternative: get rid of the edited register. The choice is between Amendments 55 and 57. Either get rid of the edited register or introduce an opt-in provision. Leaving the situation as it is with the edited register is neither acceptable nor sustainable. I invite the Minister to indicate the Government’s preference. If he merely repeats the mantra that the arguments are finely balanced but things will remain as they are, we will be having this debate on further occasions. I beg to move.

[Lord Tyler]

My Lords, my noble friend Lord Norton of Louth is absolutely right to raise this issue in this context because the change to individual electoral registration provides a precise opportunity to think about this matter again. As he properly said, it already improves the situation and it is the right moment to be looking at this issue.

However, I confess that I am somewhat bemused. The most persuasive case for retaining the edited register has come from charities and credit agencies, both of which have a proper and natural interest that we should recognise. Theirs is a proper use of this data. It is rather unusual to hear a Conservative, of all people, apparently decrying that very proper interest of such organisations in accurate data of this sort.

It may be that the noble Lord, Lord Norton, is introducing a new idea, as he has done just now, by suggesting that some organisations of that sort should have access to the full register. That brings us to a very difficult problem of definition because under Amendment 56, he is apparently defining what a commercial purpose is. A credit agency would certainly be a commercial purpose. Is seeking to raise money for a charity not also a commercial purpose? I find it slightly bewitching at this time of night that a dedicated Conservative Peer appears to denigrate the idea of having a commercial purpose at all, as if it is somehow a disreputable activity. I therefore have a problem of definition under Amendment 56.

However, I return to my original point. It is perfectly right, proper and appropriate that we should ask the Government at this stage to be thinking about this matter. Amendment 57 is clearly the least objectionable option that the noble Lord has put forward, but I wonder whether, if electors had to opt into an edited register, many would do so and whether the whole exercise would become a wasteful bureaucratic nightmare. The opt-in option would, in that sense, be a red herring.

However, this is obviously the right moment to be asking Ministers to think again, and I hope that my noble friend on the Front Bench will do just that. If he is unable to make progress in persuading the Committee in one direction or another, perhaps this is a matter that we will have to return to on Report.

[Lord Taylor of Holbeach]

My Lords, I welcome that contribution from my noble friend Lord Tyler because he points to the fact that commercial activity is highly desired by this Government. We look for the growth agenda and when people are looking for a job, they perhaps think that that is a bigger principle than anything that my noble friend Lord Norton of Louth may have raised.

I should make it clear that, before 2002, the full register was available for purchase by commercial organisations. There was no opt-out and no edited version was available. The edited version was produced in order to protect individuals who did not want such purchases to happen, and that opt-out arrangement remains current and will continue through the change to individual voter registration.

There has been discussion with interested parties on this matter. This is not the Government making their mind up without having discussed these matters with commercial organisations and electoral organisers. The Government have decided, on balance, to retain the edited register and the current opt-out arrangements. However, were the edited register to be abolished, there would be strong pressure for increased access to the full electoral register, from which no one can opt out. The Government are concerned about the potential impact this could have on registration rates; if people did not want to be removed from this register by an opt-out, they may choose not to register at all. On balance, the Government believe that an edited register from which electors can choose to opt out is the right outcome. It is worth noting, as I said before, that before the creation of the edited register in 2002, the full electoral register, including everyone’s name, address and details, was available for purchase by any commercial or other organisation.

Amendment 56 is, as my noble friend Lord Norton of Louth says, a little by way of an “either/or”. It would prohibit the use of an edited edition of the electoral register for commercial purposes, and require the Secretary of State to define designated organisations. We are aware that some within the electoral community have argued that data collected for electoral purposes should not be used for commercial gain. On the other hand, I have presented the case for the use of the register as an aid to business and commerce. I hope that my noble friend will take that seriously. Others have argued that the edited register provides significant economic and social benefits. Crucially, anyone who does not wish their details to be used for commercial—or any other—purposes is able to opt out of the edited register.

Under IER, registration forms will also include a statement on the processing of the data supplied by the individual, including the uses of the registers. The Government are reviewing the name and description of the two versions of the electoral register to ensure that it is as clear as possible to registering voters what the circumstances are and to enable them to make a fully informed choice. Given this important safeguard, I see no reason to limit the uses to which the edited register can be put.

My noble friend’s Amendment 57 would remove the current opt-out arrangements for the edited version of the electoral register, in favour of an opt- in. The Government take the handling of personal information seriously and believe that providing electors with a choice to opt out, alongside sufficient information—of which I have given an indication to my noble friend—to allow the individual to make an informed choice, provides appropriate protection and control. Electors will also be familiar with the choice of an opt-out; this has been in operation for a decade now.

However, we believe that the current system, where most electors are asked to make a fresh choice each year about whether they wish to opt out, is unnecessary. We are therefore proposing that under IER an individual’s choice will be carried forward unless and until they inform their registration officer that they wish to make a new choice or they complete a new application to register. We also intend to make it as simple and straightforward as possible for electors to change their preference at any time.

I hope that noble Lords will believe that I have tried to give as positive a response as I can. We are sensitive to the issues which underlie my noble friend’s amendments, but I ask him to withdraw them.