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Representation of the People (England and Wales) (Amendment) (No. 2) Regulations 2006

Volume 686: debated on Monday 30 October 2006

rose to move, That the Grand Committee do report to the House that it has considered the Representation of the People (England and Wales) (Amendment) (No. 2) Regulations 2006 [36th Report from the Joint Committee].

The noble Baroness said: In speaking to these regulations, I shall also speak to the Service Voters’ Registration Period Order 2006 and the Review of Polling Districts and Polling Places (Parliamentary Elections) Regulations 2006, which appear subsequently on the Order Paper.

As noble Lords will recall from our long and happy deliberations on the Electoral Administration Bill, we aim to tackle four key areas that we believe are at the core of a healthy democracy: improving access and engagement in the democratic process; extending openness and transparency in party financing; improving confidence in the electoral system; and maintaining professional delivery of elections. The Electoral Administration Act 2006 will be implemented, where possible, on a nationwide basis for the May 2007 elections.

Let me take noble Lords through the regulations. Part 1 indicates that the majority of the regulations will come into effect on 1 January 2007 and apply to England and Wales only. Part 2 concerns anonymous registration. Again, noble Lords will recall our debates on these issues. Anonymous registration is for a person who believes that having their name and address on the register would put their safety or that of others in their household at risk. As I indicated in our discussions in Committee and on Report, it is not there to be used as an ex-directory system for someone who does not for whatever reason want their details published on the register. The Act allows a person to apply to be registered without their details being made public.

In drafting the regulations, the Government consulted a variety of stakeholders—Victim Support, the Home Office, Scottish Women’s Aid and the Network for Surviving Stalking. This was to get their views on, for example, evidence that would be required to go with an application and who would require access to the record of anonymous entries. Through consultation—and I am grateful to those organisations for their support and advice—we were able to draft the regulations that are now before the Committee.

There are strict criteria for anonymous registration. A person has to provide evidence such as an order of the types specified in the regulations. These are made under the Family Law Act 1996 or the Protection from Harassment Act 1997, and each has the purpose of protecting people from harassment or molestation. If a person does not have an order, they can apply using an attestation, which has to be signed by a senior officer from the organisations that are listed in the regulations, such as the chief constable of a police force. We did not want a registration officer to undertake qualitative evaluations as to why someone should have an anonymous entry, which is why we prescribe in the regulations the evidence and the forms of attestation that will be acceptable with an application.As a person’s anonymous entry terminates after12 months, a registration officer will send out a reminder, as set out in the regulations, saying to the person that they need to make a fresh application to remain on the anonymous register.

The regulations also extend the current system of registration objections to empower the registration officer to remove an elector’s name from the electoral register if it becomes apparent, after the process of registration has been completed, that they should not have been registered. Previously, objections to a person’s registration could be lodged only before the application for registration was allowed, and a registration officer’s powers to remove an incorrect or out-of-date entry were limited. Noble Lords will recall that we debated that at great length. The regulations allow for any individual to object to another person’s registration at any time. An objection can also be made before or after a person’s registration. The Government feel that this change ensures that registration is more open to scrutiny and that the registers will be more accurate, which is something that I know the noble Baroness is particularly concerned about.

An electoral registration officer has the power to remove an elector from the register if he or she determines that the elector is no longer resident or for other reasons has ceased to satisfy the conditions of entitlement to be registered. This power also extends to a person who has an anonymous entry. A separate list is kept of objections to entries on the register. The list contains the name and address of the objector and the name, address and elector number, if they are already on the register, of the person being objected to. It also contains particulars of the objection.

In Part 3, the regulations allow a registration officer to make alterations to the electoral register to correct an error or to give effect to a court ruling up to 9 pm on polling day. Under the previous system, a person could have been disfranchised if a clerical error had been made that was only discovered on the day of the poll or within the five days preceding it. As errors are likely to come to light when a person goes to vote, this is a sensible amendment that focuses on the elector.

Part 4 of the regulations gives effect to the changes introduced by the Electoral Administration Act 2006 to ballot papers. In particular, ballot papers will no longer need to be attached to a counterfoil. Instead, returning officers will need to record ballot paper numbers to be used at a parliamentary election on a corresponding number list, the form of which is prescribed in the regulations. Noble Lords will recall our discussions about the administrative burden of having to remove the counterfoils from the forms.

Under Part 5, noble Lords inserted provisions into the Electoral Administration Act 2006 that provide for the collection and checking of personal identifiers for absent voters. These are designed to enhance the security of the postal voting system. Part 5 sets out in full the details of the new arrangements. Persons applying to vote by post or proxy are required to provide their signature and date of birth. At elections, postal voters must provide these identifiers when they cast their vote. The returning officer will take steps set out in the regulations to verify the personal identifiers before the ballot paper may be allowed to proceed to the count.

Part 6 amends the arrangements for proxy vote applications that are being made as a consequence of provisions in the Electoral Administration Act 2006. They abolish any rule of common law that could be used to prevent persons with a mental impairment from voting and remove the restriction on mental health patients detained under civil powers from voting in person at polling stations, even if they are well enough to attend the polling station.

Paragraph 94 of Schedule 1 to the Electoral Administration Act 2006 provides for the cancellation and removal of ballot papers under any prescribed circumstances. Part 7 of the regulations cover the procedure by which a cancelled postal ballot paper should be retrieved from a ballot box under prescribed circumstances. Part 8 of the regulations substitutes revised forms of official poll card to be sent to the elector or proxy voter and prescribes the new forms of official poll card to be sent to postal voters and postal proxy voters.

Part 9 is made in consequence of the introduction of new Rule 31A in the parliamentary election rules requiring returning officers to record the return of postal ballots. Part 10 affects access to the records and lists that registration officers maintain of postal voters, proxy voters and proxy postal voters. The provisions work in conjunction with and mirror the framework that governs access to and supply of the full electoral register. The new arrangements take into account the decision in the Robertson case, which concerned the supply of the electoral register. The High Court found that the supply of the register for direct marketing purposes without giving individual electors the opportunity to object was in breach of data protection and human rights legislation.

Part 11 introduces a new framework of regulations governing access to and the supply and inspection of the marked electoral register, postal voters list and other election documents. It broadly mirrors that which is already in place for the electoral register, and implements change to the processing of information from the electoral register and the offence for misuse of the electoral register. Part 12 sets out a number of miscellaneous amendments relating to postal voting and the conduct of elections, and a transitional provision about the anonymous registration process.

On the Service Voters’ Registration Period Order 2006, noble Lords will recall that we wished to increase the length of the registration period on the electoral register for service personnel and their spouse or civil partner from one year to three years, where a service qualification has been completed. To allow for the minimum confusion in implementing the Act, this order will not be made until 18 December so that it can come into force with the other regulations on 1 January 2007.

Finally, as regards the Review of Polling Districts and Polling Places (Parliamentary Elections) Regulations 2006, Sections 18A to 18E of the Representation of the People Act 1983, as amended by the Electoral Administration Act 2006, state that a local authority is required to keep the designation of polling places and polling districts within its area under review. Schedule A1 to the 1983 Act requires that regulations specify the manner in which representations made by a returning officer in connection with the review are to be published by a relevant authority, and specify the information that a relevant authority must publish on the completion of a review. These regulations aim to give greater transparency to the review process. I beg to move.

Moved, That the Grand Committee do report to the House that it has considered the Representation of the People (England and Wales) (Amendment) (No. 2) Regulations 2006 [36th Report from the Joint Committee].—(Baroness Ashton of Upholland.)

I thank the Minister for that very clear explanation of the regulations, which we discussed in considerable detail during the passage of the Electoral Administration Bill—now Act—when an enormous number of changes were made.

I do not have much to say on the Representation of the People (England and Wales) (Amendment)(No. 2) Regulations 2006. The Minister cleared up a point that I had not picked up in detail. She said that there will be an annual requirement to renew anonymous registration. That is extremely important, otherwise anonymous registration could go on for ever. I was intending to ask whether there was a time limit, so the noble Baroness’s explanation saves me asking a question and her giving me an answer.

The Minister talked about absent voting and the personal identifiers provision. She is correct that we managed to get two identifiers put in during the passage of the legislation—the signature and the date of birth. I am a little puzzled about the percentage that has been selected for examination. I do not remember discussing what a suitable percentage would be. One in five of all postal votes applied for and cast seems to be quite small. Is that a sufficient sample to pick up flaws? Against what criteria was that figure assessed? I know that the Electoral Commission wants 100 per cent provision, although I understand that, particularly at these early stages, that may be a step too far. I can envisage the electoral registration officers getting quite wound up about having to check every vote until they are used to doing so. But 20 per cent seems very low. Perhaps the Minister will let me know against what criteria these figures were set.

On the service voters’ registration, we have memories of a valiant battle lost. The Minister will not be surprised to hear that we think that these measures are extremely second rate. The extension of the duration of the service voters’ registration, which I know has taken place since we discussed this matter, was originally going to be for five years, but it seems somehow to have slipped back to three years. Perhaps the Minister will explain why that has happened. As we made clear during the passage of the Bill, we are not sure that any of this is enough to ensure that service voters are given the opportunity to vote, particularly if they are abroad.

We still believe that the MoD has behaved badly. It could have taken far more responsibility for ensuring that servicemen had the right to vote and were under its eye in order to do so. The rather wishy-washy proposals, whereby people keep an eye on the register, do not seem to do anything much to bring about a satisfactory outcome. The requirement is merely to record a register and to keep an eye out. We are not happy with that. The Minister will not be surprised at this, but we must keep on recording our objection to the fact that these measures simply do not answer the problem. It will be interesting to see whether at the next election the situation is any better at all as a result of this.

On the review of polling districts, we all agreed that polling stations should be accessible. These days, it is completely unacceptable that anybody with a disability should not be able to get into a polling station, or to get a postal vote if they cannot, or cannot get out. We have no objections to any of these provisions.

In general, then, we support these measures, but with grave reservations about the service voters’ registration.

We share many of the concerns expressed by the noble Baroness, Lady Hanham. Like her, we have nothing to say on the review of the polling districts; that seems an entirely proper matter, and I do not wish to make any comments on it. As for the other matters, we believe that the provision made for service voters is inadequate. The Act itself does not go as far as it should, but stronger measures clearly could and should be taken to make it easier for service people—particularly those on duty outside the United Kingdom—to cast their votes, which they of course have absolutely as much right as anybody else to do. They should be provided with the best possible facilities. All that has been done is to extend the period from one year to three. Three years is inadequate; it is less than the normal gap between general elections. I would have thought that the original proposal for five could have been implemented at once. We remain concerned with that, and the battle must continue.

On the main order—the Representation of the People (England and Wales) (Amendment) (No. 2) Regulations—we are broadly happy with everything except the provisions for verification of the personal identifiers. We feel that 20 per cent is much too low. We recognise that it may not be possible to bring in 100 per cent verification at once but, as elections happen and experience is gained, the regulations should have provided—even if they have to provide for 20 per cent initially—for a target date by which we should be able to get to 100 per cent verification of the personal identifiers. That would be an important step forward in what has been a serious problem in recent elections, particularly local elections. The measures taken so far are not strong enough.

Otherwise, we are satisfied with the regulations and are grateful to the Minister for the care with which she has explained them.

I want to pick at one or two of the details of these regulations, and I suppose that the Minister will remind me that I have got my anorak on again. I have tried to work out how many election counts I have been to, but I lost count, although the number is into three figures, which is extraordinary. I wonder what I have done with my life.

Very often, ensuring smooth, efficient and well run elections, and the other side of the coin—stopping people fiddling elections—are a matter of the detail, which is very often important. Regulation 4 of the Review of Polling Districts and Polling Places (Parliamentary Elections) Regulations states:

“On completion of a review the authority must publish”,

a list of provisions. I am not sure what is meant by the word “publish”, which may be obvious to everyone except me. What does that mean?

I also have one or two comments on how the regulations in the main document might work in practice. Part 4, entitled “Replacement of Counterfoils”, refers to what we will now learn to know and love as the “corresponding number list”. Are the corresponding number lists among those documents that can be inspected by people as set out after the election? I am concerned about those lists, which are set out on pages 58 and 59. It will be fairly easy for voters—particularly at a quiet polling station where people might stay to chat for five minutes with those behind the counter because they know them—to have a good look at the list. They would be able to see the electoral number and the corresponding ballot paper number. Until now, a real effort has been made to stop people knowing ballot paper numbers because they then could go along to the count, see the number and work out how a person had voted. Usually, that is not very easy to do, but in small wards where there are not many votes it could be quite easy if forms such as L2 are just lying on the table as voters go in. The presiding officers and clerks write down the numbers and then get people to sign. When people sign, they will be able to see the names of everyone else who has signed. That worries me a little. Do the Government have a comment on that?

On personal identifiers, noble Lords have picked up on the fact that only 20 per cent will be checked. The Electoral Commission has expressed concern about that. New Regulation 85A, on page 25, sets out the procedure for checking personal identifiers. The implication of new Regulation 85B—on additional personal identifier verification—is that the returning officer has to check 20 per cent, but, if having checked 20 per cent they think that things might be going on that ought not to be going on, they can check more. Is that the case?

I have two questions. First, if a minimum of 20 per cent must be verified, will places where it is suggested that there might be more fraud than in others be expected to verify more than 20 per cent right from the beginning? If so, what criteria will be used for deciding that in particular places? Will advice be given to returning officers, or is it entirely up to them?

Secondly, once 20 per cent have been verified, what criteria will be used to decide to verify more? By that stage, it will be quite difficult to get everything out again and start re-checking. It will certainly delay everything a great deal. Will candidates’ agents be consulted at that stage? If you go to a lot of these events, you generally find out quite quickly that the role and status given to agents varies greatly from place to place. In some places, agents are given very few rights and are simply consulted at the end when everything has been added up. In other places, the culture allows agents to keep an eye on what is happening as it is happening. I am not clear whether that will be possible under the regulations. Will it be possible, for example, for the signatures of the 20 per cent to be checked in the presence of agents, or will they be checked secretly? This is key. Will this simply be left to returning officers? If it is, there will be huge differences between the practices in different places. That is simply the way it works at the moment.

On the changes to proxy applications, I shall talk briefly about the recent case in Burnley in which two people were found guilty of defrauding the returning officer as a result of wrongfully filling in proxy forms. I do not want to say too much about it because I understand that they may appeal. I shall wait until everything is finished before I have a lot to say. Nothing in the regulations tightens up the procedure for applying for a proxy vote. At the moment, it is very easy—indeed, it is accepted in a lot of places—simply to write on the form “away at work”, “in some other country” or “on holiday”. The judge in the case recommended that the system of proxy voting should be reconsidered and tightened up a little, or perhaps a lot. I wonder whether the Government have taken that on board.

I have seen proxy application forms, and I learnt some time ago that, if you are an agent for an election in some of these areas and your party is submitting proxy applications, you must insist that you look at all those applications very carefully before they go in. In the light of what has happened in Burnley, I am very glad that I have insisted on that in recent years. You find that people write things such as “shopping”—a classic one. I upset some of our workers by simply tearing the applications up and saying that they could not be accepted. The form and the system are not as rigorous as they should be.

We then come to the question of access to the marked electoral registers and other documents in Part 7. The regulations set out very clearly that it will be possible to have access to personal statements after the event, and that the people entitled to make an inspection may make handwritten notes but not copies. That is a difficulty, because it depends on signatures. At the moment, it is possible, after the event, to check the declarations of identity against the witness statements. The ability to photocopy signatures and check them against the signatures of the people concerned has been a valuable way of telling whether there has been any fiddling in postal votes. This is a grey area in the regulations, although I have certainly been allowed to do it in the past. The fact that this will no longer be possible will make it more difficult for representatives of the parties and the candidates to investigate any possible fiddling.

One of the reasons why there are so few prosecutions in election fraud cases is that it is very difficult to gather evidence. It is especially difficult to gather evidence within 28 days to seek an election petition. It would be much easier if one could inspect not only the statements that people make when they vote but the application forms for postal or proxy votes. In the past, the regulations have been grey and it has been possible to inspect those, but in the past two or three years the Electoral Commission has ruled that that is not possible, and registration officers seem to have applied that ruling. I do not understand why it is not possible to look at the application forms for postal and proxy votes. That would enable evidence on fraudulent applications to be gathered. At the moment, it is very difficult to do that.

On page 39 of the regulations, under the heading “Miscellaneous Amendments”, there is reference to an,

“Additional requirement for applications for ballot papers to be sent to different address from that stated in application”.

That is extremely welcome. I hope that the measure will be applied rigorously and that statements such as “going shopping” will not be accepted by registration officers as a reason for diverting postal votes. We all know of the Birmingham case and of many allegations in other places of the wholesale diversion of votes to postal vote “factories”. That is one of the main problems that has arisen with postal votes. I hope that reasons will have to be stated in detail so that people cannot just write vaguely, “Away from home”, which is what has tended to happen in the past. It would be extremely helpful if applications for postal votes could be inspected by people who might have evidence on whether they were valid.

Applications for postal votes must be made on white paper within a box measuring 5 x 2 centimetres. That is fair enough. Presumably, if they are submitted on Basildon Bond blue paper, or if the relevant information is outside a box on the form, they will be sent back. As regards the postal voting statement that is sent in with the ballot paper, what happens if there is a perfectly reasonable signature, which is clearly the relevant person’s signature, but it goes over the edge of the box? Will that invalidate the vote? Will the form be sent back for another signature, which would be a recipe for all sorts of complaints and chaos? Or will it be accepted and looked at manually rather than by whatever other system will be used? It seems to me that there is great scope for silly problems to arise in that area if we are not careful.

Finally, page 50 of the regulations refers to the postal voting statement. As regards the boxes where the voter has to include his date of birth, no doubt it is fairly obvious to many people where you have to write the day, the month and the year. However, some people, particularly those from different cultures, may put those figures in the wrong place or write them back to front. It would be helpful if under those boxes the words “day”, “month” and “year” were included, as often occurs on other forms.

I am grateful to noble Lords who have spoken in this short debate, and I am delighted that I have light with which to find my answers.

I begin by addressing the two points raised on both sides of the Committee concerning the percentages that we have chosen to use to begin the work on personal identifiers, and the issue of service voters. The noble Baroness is absolutely right about the 12-month review of the anonymity requirement. On personal identifiers, the first thing to say is that 20 per cent is the minimum. It has been decided in conjunction with electoral administrators and the Electoral Commission. We expect that in some areas they will want to look at many more. It is statistically an important percentage, and it will be done randomly at all stages, therefore acting as a deterrent to those who wish to try to defraud the system. It does not prevent, in any circumstances, those electoral officers who wish to go much further from so doing. That obviously depends to a degree on the individual circumstances in an area and the electoral officer’s view of whether more should be done.

We share the ambition held on both sides of the Committee to move towards 100 per cent as swiftly as possible, and we have made funding available to try to achieve that as swiftly as we can. Obviously, that is dependent on timescales for general elections—as noble Lords know, I know nothing about those, ever. That would certainly be our ambition, and we want to do it as quickly as we can. We felt that it was important, having talked to the administrators, to bring this in in a way that could tackle the issue but that would make it possible to achieve as quickly as possible a minimum of 20 per cent. Funding of over £4 million is available, and those who wish to go much further than that minimum could and should. I hope, recognising that noble Lords want to move as swiftly as possible, that they will feel comforted by that explanation.

I rather thought that the valiant battle on service voters was won, not least because the noble Baroness, Lady Hanham, and the noble Lord, Lord Garden, who is not with us this afternoon, fought it extraordinarily well. I completely accept that noble Lords want us to go further, and I agree with the principle that we have to see at the next election whether the plans that we have put in place have been successful in achieving what we all agreed we wanted to achieve.

I say again, as noble Lords would expect me to, that it is not only this part of the process that matters; the other work that the Ministry of Defence is doing matters, too, not least in the registration days, some of which have already taken place. I hope that the combination of things that it wanted to do and is keen to do will make a difference. The period of three years was chosen in consultation again by the Electoral Commission with the Ministry of Defence. It is the minimum length of time that service personnel sign up for, and that felt about right, but it will be kept under review. Although I understand that noble Lords would like us to go further, the proof inevitably is in the eating of whether this works, and we will continue to work with our colleagues in the Ministry of Defence to make sure that it is as effective as possible. We share completely the ambitions of noble Lords.

I will try to deal with a number of detailed comments made by the noble Lord, Lord Greaves. He began by asking me about the polling district and what the word “publish” meant. Regulation 3, on the review of polling districts and polling places, states that the relevant authority,

“must … publish … by posting a copy of them at its office and in at least one conspicuous place in their area; and … if the authority maintains a website, by placing a copy on the authority’s website”.

I am here to help.

The corresponding number list will be sealed along with the ballot papers, so the same position as currently exists with ballot paper counterfoils will apply, which is that they can be accessed for inspection only after an election by the police witha court order made under the Electoral Administration Act.

On the secrecy of numbers on the corresponding numbers list, equipment is being developed so that the voter can see only their own details when signing the list, which I hope will solve the problem that the noble Lord is concerned about. I have also noted that we ought to ensure that the guidance covers any remaining problems that there might be with that. I think that the equipment will solve it, but we will make sure that it does.

The noble Lord asked whether there would be a consultation with the candidates about increasing the figure from 20 per cent. There is no requirement for a consultation with the candidates. The noble Lord will know that the practice varies in different places, and I would expect that candidates or agents will be keen to make representations when they think that there is a problem. The noble Lord asked, too, whether checking would be done in the presence of agents and candidates. The answer is yes, it would be.

The noble Lord asked a couple of other questions that he has raised in parliamentary Questions, which I have responded to on behalf of my honourable friend Bridget Prentice, about Judge Gilbert’s points about proxy voting. The noble Lord will know that we have not yet had sight of precisely what the judge has said, which we would want to examine very carefully before committing further. But I put a copy of the Written Answer that I gave the noble Lord in the Library. I hope that it will deal with the specific points about proxy voting. We shall come back to noble Lords if any further issues arise from the judge’s remarks, when we have had a chance to see them.

The noble Lord asked about requests to inspect postal voting statements. They are made in writing to the registration officer; they must state who will inspect the documents and the date on which they wish to inspect them. They can be viewed only for electoral or research purposes and under supervision. I hope that that answers the noble Lord’s point.

The noble Lord asked what would happen if a mark went over the edge of the box. If it did—because some people have more flamboyant signatures than others—it would get kicked out by the machine, a person would look at it and see that it was fine, and it would be fine. So the machine process points up the fact that there is an issue, but it would not cause the problems that the noble Lord is concerned about.

With the date box, lots of people print “DDMMYY”, which is a way in which to get people to put the dates in the right order. We shall havea look to see whether we have covered that. Thepoint is well made, especially in these days of Americanisation, when the date is sometimeschanged round.

I think that I have answered the points that the noble Lord made. If I have not, I shall pick them up separately with him. I hope that in general noble Lords will feel that the regulations are worthy of support.

To go back to the personal identifiers, I am pleased that the 20 per cent will be a minimum. It is clear that the Electoral Commission hopes that the figure will move up to 100 per cent. The briefing, which I am not sure that the Minister has seen, ends up by saying:

“We hope that the Government will commit itself to putting the necessary resources and technology in place for 100 per cent checking to be implemented across Great Britain before the next UK parliamentary general elections”.

I would be remiss if I did not ask whether the Government were going to do just that.

Yes, we are. Our ambition is to get to 100 per cent by then. We have already put in place funding, and £4.1 million is available to enable the commission to have the equipment to do this. We hope that as soon as possible people move towards that. I am hesitant about saying that it will happen by the general election only because I have no idea when that will be. Were it to be sooner rather than later, there might be an issue. But that is our ambition, and the resources will be available.

Could the Minister respond to the question about the reasons given for diverting votes, which is a subject very close to my heart? Is it possible to give guidance to registration officers that the forms that they put out should require reasons that are a bit more specific? If people have moved, they should say where they are now living and, if they are in student accommodations, they should say where they are studying, rather than just saying that they are away from home or “gone shopping”, or things like that. That would make a big difference in stamping out illegal diversion of votes, which obviously we all want to do.

I am sorry that I did not answer that point specifically. The Electoral Commission will be giving that kind of guidance. I have written myself a note to say that we should pick the point up with the commission; if I might, I shall do so and ask it to write to the noble Lord directly to address those concerns.

On verification, if the returning officer discovers that, of his 20 per cent that he has opened, a significant proportion are not verified and the figure is so large that it might affect the outcome, is any guidance given to him that he should proceed to count the whole lot?

I hope that electoral officers will need no guidance and that it will be obvious that they must do further things. The new regulations allow a returning officer to make additional checks on any postal ballots opened at a previous opening session, where they have not been verified. We have left when to do that to the discretion of the returning officers, but I have no doubt that there will be additional supportive guidance from the Electoral Commission. It is part of the ambition of moving to 100 per cent as quickly as possible.

On Question, Motion agreed to.