Parliamentary Voting System and Constituencies Bill

William Cash Excerpts

Monday 18th October 2010 Commons Chamber

[Mr Harper]

If I may say so, I think that the hon. Gentleman is trying to make debating points where there simply is none. He knows the proposals that we have set out, and appointing the counting officers has nothing to do, in essence, with the combination amendments, which we can debate next week. They will be tabled today, as I said in my letter. Members will therefore have a week to scrutinise them, and we can deal with that point next week.

[Mr William Cash (Stone) (Con)]

Will my hon. Friend be good enough to give me an assurance on an important question relating to thresholds? He mentioned the issue in response to my concerns during earlier proceedings of the Bill, and he knows very well that the threshold is commonly regarded by anyone who knows anything about referendums, including about the Scotland Act 1998, as absolutely crucial—as fundamental to the question of how such legislation should operate. Will he assure me that the splurge of amendments before us has nothing to do with depositing the threshold proposals, which I and my hon. Friends the Members for Epping Forest (Mrs Laing) and for Christchurch (Mr Chope) have put forward, at the bottom of the pile for discussion today? It looks highly likely that we will never reach them. Can my hon. Friend the Minister assure me that he is concerned to ensure that the threshold amendment is properly considered today?

[Mr Harper]

That is a very helpful intervention, because my hon. Friend will know that in the programme motion that I laid before the House last week we made provision for the House to sit until 11 o’clock this evening, which, notwithstanding Mr Speaker’s decision to allow an urgent question, means that the House will have more time today to debate those matters than it would have had if we had not tabled the motion. I am very keen to ensure that the House makes progress. That is not entirely in my hands—it depends on every Member ensuring that we can debate all these important matters—but I certainly want to reach that debate and will do my best from the Dispatch Box to ensure that we do.

Government amendment 262 mirrors the position for UK parliamentary and European elections and is necessary to ensure that counting officers and regional counting officers are suitably equipped to conduct the referendum poll.

Government amendment 270 provides that across the United Kingdom the polling stations allocated for the referendum will be the same as those allotted to electors for UK parliamentary elections. The amendment also provides that where special circumstances arise, the counting officer can allot different polling stations.

The Government have tabled amendments 168 and 169 at the request of the Electoral Commission. Paragraph 5 of the schedule gives the chief counting officer a power to direct regional counting officers and counting officers in the discharge of their functions at the referendum. The amendments clarify the extent of the power of direction and specify that it includes any planning and preparatory steps essential to the smooth running of the poll. That will enable the chief counting officer to require regional counting officers and counting officers to provide copies of plans, risk registers or other things that demonstrate that they are, or will be, discharging their functions in accordance with the chief counting officer’s directions. We believe that the amendments are necessary to enable the chief counting officer to prepare, plan and manage the poll effectively and to ensure compliance with any directions issued within the scope of her power.

Amendments 265 and 266 allow for the fees that are paid to counting officers and regional counting officers for delivering the referendum on the voting system to be reduced in circumstances where they fail to meet an adequate standard of performance.

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[Mr Cash]

On a point of order, Mr Evans. I do not know how the order of the amendments was decided, and I am sure that it was done in a proper and orderly manner, but I wish to place on record the fact that the threshold provisions are being driven further and further down the selection list, yet they are seminal to the referendum and whether it can be justified in the national interest.

[The First Deputy Chairman of Ways and Means (Mr Nigel Evans)]

A statement was made by the Minister earlier about thresholds and I am sure that it will all become clear to the hon. Gentleman as he stays for the rest of this evening’s proceedings.

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[Mr Cash]

I am intrigued by the proposals. The first of the two amendments—amendment 153—deals emphatically with an important question of administrative law. Under paragraph 42(3)(a), the regional counting officer or chief counting officer has a permissive power to give a direction. Importantly, sub-paragraph (3) says:

“The Regional Counting Officer or Chief Counting Officer must then either—

(a) direct the counting officer to have the votes re-counted, or”—

this is the crucial proposal—

“(b) direct the counting officer to make the certification under section 128(5) of the 2000 Act.”

From paragraph 42(4), it is clear that the Government’s intention is that the provision should be permissive only. I pay tribute to my hon. Friends the Members for Milton Keynes South (Iain Stewart), and for Epping Forest (Mrs Laing), for insisting that the provision be not permissive but mandatory. That would put the whole question of the administrative arrangements for such a proposal on a compulsory footing, and that, when applied to the Bill, makes a significant difference. If the provision were merely permissive, almost anything could happen, but if it were compulsory, the regional counting officer or chief counting officer would be under a legal obligation to give a direction under paragraph (3)(a)

“if the officer thinks that there is reason to doubt the accuracy of the counting of the votes in the counting officer’s voting area.”

There will be enormous difficulty and ambiguity if that is done purely on a permissive footing, so I strongly recommend that the Government accept the proposal of my hon. Friends, who insist that the provision be made compulsory.

Under paragraph 42(5), there is a compulsory requirement, in that

“A counting officer who is given a direction under paragraph (3)(a) must—

(a) begin the re-count as soon as practicable, and

(b) if the officer does not begin the re-count immediately, notify the counting agents of the time and place at which it will take place.”

The most extraordinary situation would arise if, under sub-paragraph (5), action was compulsory, while under sub-paragraph (4) it was only permissive. I make the point strongly that a compulsory requirement, enforceable by law, seems the right way to proceed. However, all that would arise

“only if the officer thinks that there is reason to doubt the accuracy of the counting of the votes”.

As is well known, the question is not simply whether the provisions should be permissive or compulsory. We then move on to the question of what is in the mind of the officer.

How are we to establish what the officer thinks there is a reason to doubt? After all, if we are asking in legislation for a potential judicial interpretation—a compulsory requirement to depend upon what somebody thinks—how, short of bringing in the shrink, can we determine whether the person thought that or not? We are faced with an extraordinary situation, which is not uncommon in certain kinds of legislation, where the issue ultimately turns on what is going on in the mind of an official.

[Mr David Nuttall (Bury North) (Con)]

Is not the problem the fact that the Bill gives no guidance as to what matters should be in the mind of the returning officer when he comes to his decision? He is given no guidance as to what matters should be taken into account.

[Mr Cash]

I am grateful to my hon. Friend for that extremely intelligent and useful intervention, which demonstrates the very point that I am making. If we do not establish criteria, there is nothing by which the court, in a judicial action in administrative law, would be able to judge what was going on in the official’s mind. Is it to be merely a matter of opinion or is it to be a matter of judgment by certain criteria?

I notice that those on the Front Bench are watching me with some interest. I have been watching them with much interest throughout the proceedings as we were moving towards clause 6, but we were not getting there, so we will have to see.

I am sure my hon. Friend and others want more elucidation on the point. We get used to the fact that some legislation states “where, in the opinion of a Minister” and subsequently says that the proceedings shall not be challenged in any legal proceedings whatsoever. That occurs in another interesting and somewhat controversial Bill, the Fixed-term Parliaments Bill, which I do not need to go into today because we will have plenty of opportunity to examine it on another occasion.

If the provision merely states that if the officer thinks there is a reason to doubt the accuracy of the counting of the votes in the counting officer’s voting area, and does not say “in the opinion of”, we are using different language from the language that the courts are used to in administrative legal challenges, which is the precise wording, well established in the courts and in administrative law, “if, in the opinion of the officer, there is a reason to doubt the accuracy of the counting of the votes”.

As my hon. Friend the Member for Milton Keynes South made clear at the beginning, this is a matter of great importance when there is a knife-edge vote. He mentioned the experience of the hon. Member for Rhondda (Chris Bryant) in relation to elections. We must bear it in mind that the Bill is not just about an election. It is about a referendum with a range of percentages that may be applied as a result of the threshold provisions. Those will become highly controversial in the context of clause 6, which we will reach later on—much later on.

[Mr Nuttall]

When one is considering whether a recount should be requested, one must take account not just of the number of votes, but of the manner in which the election process has taken place.

[Mr Cash]

I greatly admire my hon. Friend’s perspicacity. He puts his finger on an important point—the context in which these events take place. This is about whether or not, in relation to a matter of such importance as the issue of alternative vote, we end up with a decision which could be on a knife-edge and which is decided merely on the basis of what an officer thinks.

I do not know about hon. Gentlemen in the Committee at large, but sometimes I do not have that much faith in bureaucratic thinking; in fact, I have a strong aversion to it. But if the measure were to say, “In the opinion of the officer,” we would at least know that we were on what I would describe as generally understood judicial ground. The measure does not provide for that, however; it provides for the question of what is in his mind, not his opinion, and there is a very big and important distinction to be drawn between those two things. My hon. Friend is entirely right in believing that there ought to be a context and some criteria.

Furthermore, the measure includes the wording,

“if the officer thinks”—

whatever that means—

“that there is reason to doubt the accuracy of the counting of the votes in the counting officer’s voting area”.

What is or is not reasonable is, again, a question that the courts are well used to determining. There is a whole stream of case law, which I am quite capable of spending some time describing, on the question of what is or is not reasonable, and for that matter what is or is not practicable. I am afraid to say, however, that when the Bill simply states,

“only if the officer thinks that there is reason to doubt”,

it applies yet another spurious objective test, which is actually highly subjective, and that is not the way to legislate.

We want clarity and impartiality, and to be sure that, if there is a knife-edge vote, there will not be some unfortunate mistake in the mind of the officer—and I shall make no mistake whatever about what I say this evening.

[Philip Davies (Shipley) (Con)]

My hon. Friend is making a very compelling case, as usual. Does he not agree that this is an open and shut case? Owing to the way in which the measure is worded, if the chief counting officer, or the regional counting officer, thinks that there is a reason to doubt the accuracy of the count, he “may” give a direction for a recount. Surely, if a returning officer has reason to believe that the count is not accurate, it is an open and shut case. Surely, it is the duty of the returning officer that they must order a recount in those circumstances.

[Mr Cash]

Absolutely. My hon. Friend, with again the greatest perspicacity and accuracy, has put his finger on the complete absurdity of the Government’s chosen language. Let us be quite serious for a moment—I am trying to be serious the whole time—because the fact is that in legislation of this importance, and in the circumstances of a knife-edge vote, we are allowing a situation in which, if the counting officer “thinks” that there is a reason, he only sort of has to think about whether or not he might or he might not decide to order a recount. However, as my hon. Friend says, it is absolutely crystal clear in the circumstances to which he refers that it is not possible for the officer to give a direction other than on a mandatory basis, which is what “must” actually means.

[Philip Davies]

I obviously agree, but does my hon. Friend agree that his proposal would actually benefit counting officers and returning officers? In a situation where people have been up late at night, they are tired and it is not clear whether people want to have a recount, making the position abundantly clear in the legislation would be of great help to a returning officer, who would then not be under any pressure not to undertake a recount.

[Mr Cash]

Given the seriousness of the situation that we face this evening, for example, it would be intolerable to keep people up late for no useful purpose. That is precisely why I am making these very useful comments—to ensure that what happens is in line with the proper principles of administrative law.

On the next provision, which is amendment 154, there are a number of other extremely important matters that are of grave concern. That is so important that hon. Members have devised a special provision—not merely an amendment of the kind that I have described but the very well-thought-out separate paragraph (4A), which says:

“If the difference between the total number of votes cast in the referendum in the country in favour of the answer “Yes” and the total number of votes cast in the referendum in the country in favour of the answer “No”—

this is crucially important—

“is fewer than 10,000”—

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[Mr David Davis (Haltemprice and Howden) (Con)]

Further to that point of order, Mr Evans. Two things arise from that point of order. First, it is normally the convention in this House that the vote follows the voice, so if the Government adopt amendment 3, does that mean that they will support it? Secondly, I hope that what is proposed is not a mechanism to meet the letter but not the spirit of the Government’s undertaking that all important elements of the Bill will be debated seriously. The threshold for the referendum to be carried is the most important component of the Bill, so we need to know from the Government whether they intend to provide us with time to debate it properly at a later stage.

[Mr Cash]

Further to that point of order, Mr Evans. I completely endorse what my right hon. Friend has just said, because I, too, have an amendment down in my name and that of several other hon. Members—amendment 45—but we have had no opportunity to discuss it. In the light of the proposal for the Government to adopt amendment 3, merely for the sake of a vote, but without discussion, I would strongly presume—indeed, hope—that there would be an opportunity to debate the matter properly on Report. There are other amendments affected, such as amendments 45 and 64, standing in the name of my hon. Friend the Member for Christchurch (Mr Chope), so what is proposed would be completely inappropriate, in light of the fact that, for example, the threshold for the Scottish devolution arrangements in 1979 led to a substantial constitutional crisis. I would therefore simply ask you, Mr Evans, to ensure that the Government are made well aware of our wish to have a proper debate on the matter on Report.

[Several hon. Members]

rose—