Draft European Union Referendum (Conduct) Regulations 2016

Wayne David Excerpts

Thursday 11th February 2016 General Committees

[Wayne David (Caerphilly) (Lab)]

It is a pleasure to serve under your benign chairmanship, Mr McCabe. As the Minister indicated, the draft regulations are not particularly contentious, but they are nevertheless important for ensuring that the referendum, when it comes, is conducted efficiently and fairly. They are essentially, as he said, plumbing matters. Other regulations will deal with more contentious and important issues, such as the date of the referendum, how long the referendum period will last, referendum-related expenditure, and the process by which the Electoral Commission will designate the lead organisations for both campaigns. We hold our breath on that matter, because it will be interesting to see which organisation is given responsibility for conducting the no campaign. That is not a political point; I am saying this objectively.

The Opposition support the regulations. They are well worked through and there has been a great deal of consultation, but I do have a few questions for the Minister. I am glad to see the inclusion of the innovations, modest though they are, introduced by the ERA Act. Lessons have been learned from the conduct of the alternative vote referendum in 2011.

Police community support officers can now attend polling stations, and there is a great deal of sense behind that, because it will relieve pressure on the police, but of course PCSOs have limited powers. If there was a serious fracas or potential infringement of electoral law at a polling station, it would be embarrassing to say the least if a PCSO was not able to deal with the situation because his or her powers were limited. The situation would then have to continue while the PCSO called in the assistance of a properly designated police officer. I understand the practical benefits of having PCSOs as well as police officers, but I envisage a possible difficulty arising, too. Will the Minister comment on that?

I am pleased that the Government have largely taken the Electoral Commission’s suggestions into account but, according to the Government’s own explanatory memorandum, the suggestion on the extension of emergency proxy votes has not been accepted. The memorandum states:

“In order to maintain the integrity of the electoral process, the Government considers that the emergency proxy provision should not be drawn too widely and therefore has not included the provision recommended by the Electoral Commission in the instrument.”

Will the Minister expand on that a little? I understand that proxy votes are being extended for people who are engaged in business activities or on military service. Why did he decide not to accept the Electoral Commission’s advice to have a further extension of the proxy provisions?

My next question is about who is entitled to vote. The Minister specifically said that there are provisions in the regulations to allow citizens of Gibraltar to cast their votes, but if people in Gibraltar can vote, why not people in the Falkland Islands, too, and why not people who consider themselves to be British in the 11 other overseas territories? The case can be made that the vote should be extended to all people who consider themselves to be British, because of course the Falkland Islands and the other overseas territories have some kind of relationship with the European Union as well as with Britain.

[Mark Field (Cities of London and Westminster) (Con)]

Although the hon. Gentleman makes a moderately compelling case that other overseas territories should be considered in such a way, surely he recognises that Gibraltar is a unique case. Gibraltar is on the European mainland, so the question is whether it should be counted as part and parcel of Spain or part of the United Kingdom. As he is well aware, it obviously counts as part of the United Kingdom for European elections, so there is some sense in maintaining that slightly analogous situation specifically for Gibraltar while not extending it elsewhere.

[Wayne David]

I am not arguing against the case for Gibraltar, which I recognise has a unique relationship with Britain and the rest of the European Union. I am simply posing the question of whether there is an argument for extending votes in this referendum to people in the 12 overseas territories that belong to the United Kingdom. Those territories are referred to in annex IV of the treaty establishing the European Economic Community, so a legal relationship has been defined, albeit it is not the same kind of relationship as that of Gibraltar and the United Kingdom.

Let us not forget that there are 1,650 registered voters in the Falklands. They were registered for the 2013 referendum in which they almost unanimously—barring three voters—decided that they wanted to remain part of the United Kingdom, to all intents and purposes. I am sure that the people of Falkland Islands would consider that—morally at least, if not in terms of the technical specifics—they should be able to cast their votes. I am sure that they would point out that, in an equivalent French process, people in an overseas department, such as La Réunion or Guadeloupe, would be able to cast a vote, because those people were able to do so in the 2005 French referendum on the so-called constitutional treaty. Those overseas departments are, to all intents and purposes, very similar to our overseas territories. I will be intrigued to hear the Minister’s response to those points because there is a case for treating everyone in the same way.

My final question is about the count and declaration, although I might be straying a little beyond the regulations. It was announced in December that the final declaration of the result would take place in Manchester, but why there? Why not London, Cardiff or wherever? I understand that there will be collation centres for the 12 regions, but have the Government made a decision about the venues for those centres? The natural place for the venue in Wales would be Cardiff, but it would be nice to know precisely which cities have been chosen, if that has been stipulated, and whether arrangements are in hand to ensure that there will be a smooth count. I also understand that there will be 382 counting officers who will operate locally and feed information to the regional centres before a national announcement is made. I know that regional declarations will be made—I am sure that many will watch with interest what happens in Wales and Scotland—but will the local results be announced to the public?

What will happen at a local count if an individual who is accredited to be there calls for a recount? Regulation 47(1) states:

“A person within paragraph (2) who is present at the completion of the counting (or any re-count) of the votes in a voting area may require the counting officer to have the votes for that area re-counted…but the counting officer may refuse to do so if in the officer’s opinion the requirement is unreasonable.”

To ask the obvious question, what is the meaning of “unreasonable”? Surely there should be criteria to determine whether a vote is very close so that an officer is not in the invidious position of having to make a subjective decision about whether a recount is required. Will the Minister clarify the situation and explain why the imprecise word “unreasonable” has been used?

Labour Members will support the regulations, but I will be interested to hear the Minister’s response to my comments.

[Peter Grant (Glenrothes) (SNP)]

It is a pleasure to serve under your chairmanship, Mr McCabe. I am grateful to the Minister for his comments about the regulations.

I would not suggest that hon. Members should do anything other than approve the regulations, although it would create an interesting precedent if we had a referendum without any rules on its conduct. However, I wish to raise a few points, and I hope that the Minister will respond to them today or assure me that they will be taken into account as we get closer to the date of the referendum.

The hon. Member for Caerphilly asked why the declaration would take place in Manchester, but it has to happen somewhere. If it was in London, a lot of us, including many people in Wales, I suspect, would be asking, “Why always London?” The real reason for the decision is that when we see the size of the bill for repairing this place, we will all want to move to Manchester, because it will be the only place where we can afford to build a Parliament, and I suspect that a lot of people in the north of England would support that.

The hon. Gentleman also asked a question about the reasonableness, or otherwise, of a request for a recount, but it is impossible to predict every scenario for a referendum in which every vote in every ballot box is equally likely to be the decisive one that swings the entire result. In a parliamentary election, the returning officer and everyone else can see how close a result will be, and sometimes at an early stage in the process, so if someone who has clearly lost by 8,000 or 10,000 votes asks for a recount, that is unreasonable. However, although it might appear that there is a large majority on one side after the first few areas have declared, there is always the possibility of that position changing as more results come in. An area that declares with a majority of 10,000 might have a miscounted or misclassified bundle of 100 votes, but those 100 votes could be decisive in the event of a close overall result. In such circumstances, we must leave things to the professionalism of the counting officers and expect the chief counting officer to be prepared to say, “Do you know what? This is now so close that we need to look at every contested declaration, just to make sure.” We all agree that we cannot afford to have a result that people think is unfair or somehow fiddled, whether due to error or another aspect of the process.

Let me ask the Minister about various aspects of the regulations. On timetabling, I fully understand why bank holidays are not counted as working days when calculating the period of notice, but I ask the Minister to respect the fact that while we have things in Scotland called “bank holidays”, which are sometimes the same as those in England and sometimes not, no one in Scotland, apart from the banks, pays a blind bit of attention to them. Many places have traditions of local public holidays during which schools, and often public services and businesses, close. The dates of such holidays vary from place to place, are often based on long-standing traditions and are jealously guarded by local people. It would be unreasonable to ask that the Government try to avoid a clash with any local public holiday in Scotland, but I ask them to be aware of those holidays. It might be better for them to avoid the process affecting any time of the year when such public holidays tend to congregate, which is May and June, so perhaps the Minister will heed what I am saying about that.

Regulation 58, which deals with the public inspection of papers, has a link with the Data Protection Act and the question of who is allowed to see marked registers. I know personally of examples of when the availability of such registers to agents or political parties allowed a party to satisfy itself and its supporters that there had not been large-scale personation. On one occasion of an unexpectedly high turnout in an election, it transpired that the marked register for that election showed a significant number of people as having voted, despite the fact that previous registers showed that they had not voted for 10 or 15 years. As an agent was allowed to get the new information—he already had the historical information—he could make his own inquiries, and it turned out that those people had, for whatever reason, decided to vote. It could therefore be demonstrated that what appeared to be a highly suspicious pattern of voting was completely legitimate. Importantly, that allowed the candidate who lost the election to say to his supporters, who were claiming foul, to say, “We lost fair and square—live with it.” Such a statement by a candidate has a lot more power than one from the authorities. I therefore ask the Government to bear in mind that it is sometimes vital for the integrity of the entire process that such information is made as available as possible within the confines of data protection legislation.

As this is not clear from regulation 45(1), will the Minister confirm that the expectation is that, when possible, the count will begin at the close of poll so that results will start to be declared as quickly as possible? I know that there are some places where, because of their remoteness, the count is traditionally done the following day, but if the intention is that the count be carried out overnight on the Thursday, it will be useful for everyone to know that as soon as possible.

Anyone with experience of either working in a polling station or attending a count will have been greatly impressed by the dedication and professionalism of everyone who works in those places. Just look at the hours that the count staff have to put in before and after the count. They are a huge group of people to whom democracy itself owes a great deal of gratitude. The Minister should be aware that it might be more difficult to recruit that army of people to spend all Thursday night carrying out an important part of the democratic process if they are expecting to take the kids who have finished school on their summer holiday on the Friday afternoon—the Minister will understand what I am saying. In my experience, a significant number of those who work at polling stations and at counts have children, and in some parts of these islands towards the end of June, a lot of families with children will be about to go on their summer holidays, so I ask the Minister to bear that in mind.

Although I can understand why we want to go through a process in which the regional draft declarations have to be agreed by the chief counting officer before being announced, that needs to be done in a way that does not lead to the pile-up of results that we have seen in other referendums. At the time of the devolution referendum in Scotland, there was a requirement for each local authority to get authorisation from the chief returning offer before announcing the result. Inevitably, two or three councils declared very quickly, and then about 15 were all ready to go within an hour. I was at the count in Fife—the third biggest count in Scotland.

[Wayne David]

I remember the devolution referendum in Wales, when the result was on a knife edge, with a mere 6,000 votes in it. It was suggested that the final information, which came through from Carmarthen, was held back deliberately to increase the drama and suspense before the final declaration. It really was on a knife edge: many people thought that there had been a small no vote, but because of Carmarthen, the result was a small yes vote. I was wondering whether this time there is a possibility—I do not say it is good or bad—of a similar control of results coming from different parts of the country, as happened in Wales in 1997.

[Peter Grant]

The hon. Gentleman makes a valid point. I remember watching the results coming in from Wales and seeing the face of the Labour leader in Wales when the decisive result came in. I have to say, he did not look delighted, but I am sure that things have moved on since then.

At the Fife count, we waited between an hour and an hour and a half after everybody knew the result there. At that time, Scotland’s vote on the first question—about having a Scottish Parliament—was 75% yes, so everybody knew the result on the straight yes/no decision, but the returning officer had to keep the staff there for more than an hour after they knew they had done their job and there was nothing more for them to do. That was not fair to them or to the returning officer.

The hon. Gentleman talked about the suggestion that results had deliberately been held back. In another, more recent, referendum, in which the vote did not quite go the way that I intended, I would have been quite happy if the result from Fife had been lost and no one had bothered to add it to final tally. However, we waited in the count hall for between an hour and an hour and a half, with nothing visibly happening, and that started a rumour that Gordon Brown was going to be paraded as the man who saved the Union. We were assured that that rumour was completed unfounded and that the sudden appearance of an intense police presence was pure coincidence.

I ask the Minister to ensure that a clear instruction is issued that no declaration is to be delayed unnecessarily, for any reason whatsoever, so that there can be no suggestion that any particular place has been chosen to make the decisive announcement—the one that guarantees victory for one side or the other. I understand why the chief counting officer will want to have oversight of the whole process, but we cannot allow that to delay the public’s knowing the result of an important referendum.

Having stood outside local polling stations in every election since 1987 and been at every count as well, it is interesting to be part of the process of making the rules that those hard-working returning officers and their staff will have to work by. Despite the primary legislation’s limitations, the regulations should give us a referendum after which the public will be as certain as they can be that, whether they like the result or not, it will have been the choice of the people.