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National Assembly for Wales (Representation of the People) Order 2007

Volume 688: debated on Tuesday 23 January 2007

rose to move, That the draft order laid before the House on 19 December 2006 be approved.

The noble Lord said: My Lords, elections to the National Assembly for Wales generally take place every fourth year on the first Thursday in May. The next elections fall due on 3 May this year. The Government of Wales Act 1998 empowers my right honourable friend the Secretary of State for Wales to make orders governing the conduct of these elections. An order was made shortly before the 2003 Assembly elections and much of that is re-enacted in the order before us today.

However, last year saw the passage of the Electoral Administration Act which resulted in substantial changes to the rules for parliamentary and local government elections, largely based on recommendations made by the Electoral Commission and aimed at improving access to, and encouraging participation in, elections; enhancing confidence in the security of the electoral system, especially in minimising the risk of postal voting fraud; extending openness and transparency in party funding; and ensuring that elections continue to be conducted in a professional manner.

The purpose of this order is to ensure that similar improvements apply to National Assembly elections. Its coverage is more limited than the Electoral Administration Act, first, because Assembly elections are conducted on the basis of existing local government registers; and, secondly, because political parties—and their funding—are regulated on a UK-wide basis. Neither of these issues is addressed in the order. Also, the order does not—and could not—deal with the issue of convicted prisoners’ right to vote. That was the subject of a judgment by the European Court of Human Rights in the case of Hirst v The United Kingdom and the Government have recently commenced a consultation on the matter. Any resulting extension of the franchise will apply equally to Assembly elections.

The order adapts the changes that have been made to procedures for other elections so that they also apply to the conduct of Assembly elections. For example, it replicates provisions relating to independent observers, allowing candidates to show their commonly-used names on ballot papers, personal identifiers to improve the security of postal voting, and local custody of election documents. After consultation with the Electoral Commission and a range of other interests, the draft order was laid before Parliament on 19 December. Noble Lords have devoted a great deal of time over the past year to considering policy underlying the changes now being proposed, first, during the passage of the Electoral Administration Bill, and later when asked to approve secondary legislation made under it. So the background has already been rehearsed in some detail.

The order is substantial, both in length and content, and I think it would be helpful for me to focus on a few of the more significant changes which are being made. Part 1 is concerned with commencement and interpretation of the order. It repeals the 2003 order and an amendment order made in 2006. Part 2, along with Schedules 1 to 5, deals with the practicalities of conducting Assembly elections—including the administration of absent voting—together with the Assembly election rules, which are set out in Schedule 5. It reflects the new flexibility for voting by patients, other than offenders, who are detained in mental hospitals. Previously, they could vote only by post or proxy. They will now be allowed to vote in person at a polling station, provided the hospital gives them leave. It also allows them to make late proxy applications—up to 5 pm on poll day —if they are unexpectedly not able to get leave of absence.

As with other elections, Assembly ballot papers will no longer have counterfoils. This will allow returning officers to streamline the printing process. The issue of ballot papers will be recorded on a corresponding number list, which will be sealed up after the poll and can be opened only with a court order. One change which will be particularly welcomed is the redesign of the regional ballot paper. In previous Assembly elections, this showed party names and the names of list candidates in columns, and the elector marked their vote at the top. Feedback from voters showed that they did not find this layout helpful. After consultation with political parties and the Electoral Commission, we have responded by prescribing a new regional ballot paper, which is more like the traditional constituency paper.

Following amendments made to the Political Parties, Elections and Referendums Act 2000, the order provides for party candidates to use either their party name or one of its registered descriptions on the ballot paper. Concern was voiced in 2003 that the six-word limit prevented some parties using a bilingual description. That has now been fully addressed. In Wales, ballot papers may show both the English and Welsh versions of a party’s name, while registered descriptions can include up to six words of English and six words of Welsh.

Part 3 of the order, together with Schedules 6, 7 and 8, is concerned with the election campaign, including limits on election expenses, which have been uprated in line with the recommendations of the Electoral Commission. Schedule 7 defines election expenses and is entirely consistent with the equivalent definition for parliamentary elections. The Electoral Commission will have power to prepare guidance expanding on these provisions. Part 4 and Schedule 9 make provision for legal proceedings to challenge the result of an election and prescribe appropriate remedies comparable to those applying to parliamentary elections.

Part 5 deals with a range of miscellaneous and administrative matters. Noble Lords may particularly wish to note Article 141 which now gives returning officers discretion to translate documents into languages other than English and Welsh and to use Braille or other means of communication. This will ensure that no one is excluded from the democratic process through not understanding our languages or because of disability. Finally, Schedule 10 brings together all the forms prescribed in the order.

I have already said that this is a substantial order. It has to be to ensure fairness in the conduct of Assembly elections and to cater for a range of eventualities, many of which we hope will never occur. Essentially, though, its purpose is to align procedures with those applying to parliamentary elections. I beg to move.

Moved, That the draft order laid before the House on 19 December 2006 be approved.—(Lord Evans of Temple Guiting.)

My Lords, we are grateful to the Minister for setting out the main provisions of the order. It is a large and complex order, which contains provisions resulting from the Government of Wales Acts 1998 and 2006, the Electoral Administration Act and related subordinate legislation. I have a number of questions and concerns. It would be helpful if the Minister could comment on them in his winding-up speech.

The order is an A to Z of the electoral process for Welsh Assembly elections. A great deal of commendable work has clearly gone into its preparation. I am glad to note that it has been cleared by the Joint Committee on Statutory Instruments at somewhat short notice. It will apply to the coming election in May and will, effectively, be the bible for candidates and agents contesting that election and subsequent Assembly elections. It will provide guidance on the whole election process, including voting, campaigning and the conduct of legal challenges, and includes some welcome novel features, to which the Minister has just referred. It is a very important document and it is very important that its provisions should be politically impartial and correct.

I am bound to say that I was taken aback when I saw the 277 pages that comprise the order. It contains some 80 pages of detailed articles, followed by 10 even more detailed schedules. It is by the far the largest statutory instrument that I have ever come across and it could easily be mistaken for a major piece of primary legislation. The Explanatory Notes acknowledge in paragraph 4.4 the complexity of the changes that the SI introduces, and that those concerned with its practical implementation will have their work cut out to meet the challenges it poses. Nevertheless, the parliamentary scrutiny of this complex order is being rushed through both Houses in double-quick time. Unlike primary legislation, an SI cannot be amended and so, whatever fault we may find, it cannot be corrected. I am not sure that the Government have power to correct any defect that we notice.

The intention is for the order to come into force at the beginning of February so that preparations can be made for the elections in May. Why has the order arrived in the House just a week before this deadline? Both the Government of Wales Act and the Electoral Administration Act received Royal Assent in July last year. Why was this order not presented before the House sooner? Does the Minister agree that the order and its implementation are running to a very tight schedule?

This point is particularly relevant when we consider the details relating to the process for securing a postal vote in Schedule 2. Under this, registration officers will contact existing postal voters to request personal identifiers; namely, date of birth and signature. This information will have to be provided within 42 days. Failure to do so within this time will result in the voter losing his or her entitlement to vote. I received a form and provided identifiers to secure my postal vote for Westminster elections more than a week ago. I have also received a letter from Conwy Council at home in north Wales, but that letter and the council’s action in seeking my identifiers did not result from the passage of this order. The England order came into effect on 1 January, so it looks as if we are running about a month late in Wales. Does the Minister agree that we are short on time?

I hope that preparations for the delivery of letters requesting personal identifiers are already well under way and that the timetable outlined in Schedule 2 for requiring personal identifiers from existing absent voters can be adhered to. The Explanatory Memorandum which accompanies the order comments:

“The Government recognises that there may be a risk that some existing postal or proxy voters will not respond and will lose their entitlement to vote by post or proxy”.

I recognise that attempts have been made to minimise this risk by providing for a reminder letter to be sent within 21 days, but does the Minister agree that this is a very serious issue and that postal voters must not be discouraged? Turn-out in elections is already low. Turn-out at the 2003 Assembly election fell to 38 per cent, down from 46 per cent in 1999. That is worryingly low. We must make every effort to encourage people to use their democratic right to vote, but I fear that the process outlined in the order may result in a further fall in turn-out.

With regard to checking the validity of postal votes, I fully appreciate the need to tackle election fraud, particularly after the scandals that have occurred during local elections in Birmingham, Blackburn and elsewhere. According to an article in last Sunday’s edition of the Sunday Times, there is more fraud of this kind than many of us thought. Introducing tougher checks on postal votes is therefore to be commended, but why have the Government got into a situation where these checks have to be made within such a tight time schedule?

With regard to checking the validity of returned postal votes, there will be a requirement for returning officers to check not less than 20 per cent of postal votes cast. What is a returning officer required to do if a proportion of the 20 per cent that he checks is not valid? At what stage does a full check kick in?

The order implements the controversial provision incorporated in last year's Government of Wales Act that candidates in Assembly elections must stand as constituency or electoral region candidates, but cannot stand as both. It is generally held that this favours and protects the current sitting constituency members, most of whom belong to the party opposite. The order shows clearly that this decision has implications for the electoral expenses regime, which provides for different and variable amounts of expenditure to be permitted to constituency and regional candidates. This is set out in Articles 44, 46 and 47, on pages 35 to 37 inclusive, of the order. The amounts are lower for constituency candidates, which suggests that it is cheaper to run as a constituency candidate than as a regional candidate. I do not think that I am alone in finding this expenses regime confusing, not least the suggestion that a constituency candidate at an election to fill a casual vacancy may spend up to £100,000. That is in Article 47.

I return to the late timing of the order. Rushing through such changes often leads to unintended consequences. For example, the requirement for electors to sign for their ballot paper is not now being introduced in England before this year's local elections. This is due to the fact, I am told, that someone discovered that there was no legislation to deal with what would happen if an elector refused to sign: the elector could still demand a ballot paper. Is that true? What is the position so far as this order and Wales are concerned? Paragraph 7.34 of the Explanatory Memorandum contains a reference to electors signing for their ballot paper, but I cannot find a reference to it in the SI. That is a mystery. I hope that the Minister can clear it up, but it is probably too much to expect him to do so off the cuff. If he cannot do it now, I hope that he will write to me.

I reiterate my concern that such an important and complex order needs to be closely scrutinised, and our current procedure, which does not allow amendment, is hardly appropriate. The Government of Wales Act brings into effect the formal separation between the executive and the legislative arms of the Assembly, resulting in most of the statutory functions that are currently exercised by the Assembly becoming the responsibility of the Assembly Ministers. Ministers must therefore take on the detailed implementation of this order. It is vital that they do so fairly and impartially to all electors and candidates, whatever political party they support.

My Lords, the order cannot be amended, so we hope that any comments that we make tonight are helpful and can be thought about for future legislation. We have consulted the party in Wales, because this applies more to it than to us with the coming Assembly elections. It wants us to raise two points this evening.

First, there is no provision in the order for a structure for counting a Welsh Assembly election. Under the 1998 Act, there were such provisions. This in effect means that the count can now be a free-for-all. Some constituencies may choose to count as soon as the polls close; some may choose to wait until the following morning. It does not really serve Welsh democracy well to have a chaotic count following what will surely be an extremely well run election. Are there any plans to introduce such provisions?

The Minister has almost answered the second point already. Samples of the ballot papers for both the constituency and regional elections are printed at the back of the order. Are these only indicative of ballot papers that may be produced? Form CK for the constituency election refers to a candidate as “Liberal Democrat”, but the party in Wales prefers to be referred to on ballot papers in the bilingual form: Welsh Liberal Democrats/Democratiaid Rhyddfrydol Cymru. We are delighted that there is now enough space on the ballot paper for this. Also, the logo of the bird might sometimes be used by itself and at other times as part of the fuller title. I am sure that the Minister is aware of our concern and ready to put our minds at rest.

Finally, if the Liberal Democrat Benches had won all our amendments when the Government of Wales Bill was introduced here, we would have not an Assembly but a Senedd, or senate. That cannot be amended. We would have had 80 members instead of 60, to thoroughly scrutinise any legislation going before them. To avoid the great dispute between regional and constituency candidates, and who should stand where, we tried to introduce proportional representation in the form of the single transferable vote. That would have been the answer to the problem. There would have been no uncertainty at all between constituency and list members: all members would have equal validity.

We would also have given the Welsh Senedd the same powers as the Scottish Parliament. Noble Lords will remember that we had a long discussion on the subject of water. If the Liberal Democrats had had their way, the Welsh Assembly would have had a voice in the quantity, quality and distribution of water in Wales. It is too late. Her Majesty’s Government decreed otherwise. All we can do is say, “If only you had listened to us on these Benches, we would have had a much more powerful and thorough Act now”.

Elections to the Assembly are to go ahead as outlined in this order. We wish them well, but see them merely as a first step to electing a full and far more democratic Senedd, with far greater responsibilities. The best could well be yet to come.

My Lords, I express my gratitude to the Minister for introducing this remarkable document. I add to the concerns already voiced by my noble friend from the Front Bench about the process with which we are engaged. It is not a satisfactory way of dealing with parliamentary business to have a 277-page order for debate, unamendable, for consideration in such a short timescale and timetabled in this way.

It has been said that this is an important document; it is also complex. There are a great number of footnotes and explanations in the order itself, as well as the useful document that we have received that tries to make clarity out of obscurity. To see if the whole thing had been drawn up in a proper way, I tried to cross-check by homing in on something with which I thought I was familiar: election expenses. I quickly discovered that the current definitions of election expenses bear little resemblance to those that applied when I was a candidate, admittedly many years ago.

I inquired of the admirable staff of the Library whether the definitions here were the same as those that had applied in the last two general elections, and if not why not. The Library told me that the definitions are not the same and have been altered because of subsequent legislation. The Minister briefly referred to that point. I emerged satisfied from this exercise that some pretty thorough work has gone into this. I hope that it has gone in so efficiently throughout that there are no errors. Let us face it: it is complex and errors may have occurred. We cannot correct them at this stage and the whole process is advancing at a pretty fast pace.

I have one other observation on electoral expenses: the exclusion of those expenses that have to be put in the candidate’s return, such as accommodation that is the candidate’s sole or main residence, or accommodation provided by others that is a sole or main residence. In practice, is this matter examined with any great closeness by those who administer electoral expenses? Do those who fight for large constituencies and sometimes have to stay away a night from their main residence always return every item of expenditure? That may be so, but it is news to me that this was the law.

Then my noble friend referred to this whole worrying matter of postal votes. I, too, have received a communication from my local authority asking me to give a signature and to identify myself. My wife happens to be abroad, and I will have the greatest possible difficulty in getting a signature back. If, as my noble friend was suggesting, the timetable is even shorter in the case of the Welsh Assembly elections, we really have some practical difficulties to consider. I am not sure how we will resolve them.

My noble friend referred to what he called the controversial part of the 2006 Act, under which candidates may not stand for election at the same time in both an Assembly constituency and an electoral region. My description would be rather more critical than his. I thought that it was a pretty nasty piece of electoral gerrymandering.

The most interesting and revealing part of the documentation that we received was the Explanatory Memorandum, which I found fascinating and very useful; I am grateful for it. In it, we are told that the Electoral Administration Act 2006,

“aims to make progress on the Government’s four principles found at the core of a healthy democracy”.

The first is “improving access and engagement”. As my noble friend said, with turnout down to 38 per cent, we have a long way to go on the matter of engagement. The second is “improving confidence”. In the light of the scandals to which my noble friend referred and the botched attempt by the Government to rush into much wider postal voting, I think that we are a long way yet from “confidence”. The third is,

“extending openness and transparency in party financing”.

The Metropolitan Police may have done more than most in developing that process. The final principle is,

“maintaining professional delivery of election”.

My noble friend was right to refer to the article in the Sunday Times and the concerns expressed, not just in that article but by those who are responsible for supervising elections, about the whole question of fraud and postal voting. We have to go quite a long way before we can be entirely satisfied that the system is working in the way that we would all want. I only hope that the fact that we are rushing through this enormous statutory instrument without being able to cross-check it or comment on it in detail will not add to our difficulties and that the Minister is right in hoping—I know that he is genuine in that hope—that the order will improve things rather than make them worse.

My Lords, I am most grateful to the noble Lords, Lord Roberts of Conwy, Lord Roberts of Llandudno and Lord Crickhowell, for their interesting and substantial comments on the order. I shall attempt to answer all the points but, if I fail to do so, I shall write to noble Lords.

The first point that the noble Lord, Lord Roberts of Conwy, made—a view shared by the noble Lord, Lord Crickhowell—concerned the timing of the order. Like him, I wish that it could have been brought forward earlier. As he pointed out, the Government of Wales Act and the Electoral Administration Act received Royal Assent several months ago, but this order also takes account of substantial changes made to secondary legislation in recent months. The last of these were in the local government election conduct orders made on 12 December. The present order was laid a week later and I hope that the noble Lord will accept that, in the circumstances, that was the earliest practicable date.

The noble Lord also raised specific points on absent votes and personal identifiers. Because this order could not be brought into force before the end of 2006, the timing provisions for collecting personal identifiers from existing absent voters are different from those in the Absent Voting (Transitional Provisions) (England and Wales) Regulations 2006, which relate to parliamentary and local government elections. But, if an elector has already provided identifiers under the transitional provisions regulations, those will be equally valid for Assembly elections, so there is no need to collect a second set.

We do not want people to fall off the list of postal voters. To minimise that risk, electors who do not respond to the first request will receive a reminder after three weeks. However, personal identifiers are a key element in improving security, so, if an elector has failed to provide them after a total of seven weeks, it will be necessary to remove that person from the list of absent voters. The electoral registration officer must notify electors in writing that that has been done and provide details of how, if they wish, they may submit a fresh application with the required personal identifiers. So every effort is being made to encourage people to remain registered as absent voters.

The level of verification prescribed for personal identifiers is consistent with the approach being adopted at present for local government and parliamentary elections. The Government believe that 20 per cent is a statistically robust figure for sample checking and that it will be a good indicator of whether fraud is occurring—a concern raised by the noble Lord, Lord Crickhowell, in particular. But this is a minimum: the returning officer may decide on a higher rate and, even if he or she begins with 20 per cent, that can be increased later if evidence of fraud emerges. The Government are keen to move to 100 per cent verification as soon as is practicable and we plan to apply that to Assembly elections at the same time as the change is made for parliamentary and local government elections.

I turn to noble Lords’ comments about candidates’ expenses. I should emphasise that the order is concerned with the election expenses only of constituency candidates and individual candidates at regional elections. Apart from a small amount for personal expenses, there are no individual limits for party-list candidates, whose election expenses are treated as part of their party’s expenditure, which is regulated under the Political Parties, Elections and Referendums Act 2000. The limits for constituency candidates are in line with the recommendations of the Electoral Commission. The figures are the same as those that applied at the 2005 general election. Similarly, the £100,000 limit for an election to fill a casual vacancy is the same as that for a by-election to the other place. It reflects the fact that candidates at such elections do not benefit from a wider national campaign. The limit for an individual candidate at a regional election is the aggregate of all the constituency limits in the region, reflecting the need to communicate with a significantly larger electorate.

The noble Lord, Lord Roberts of Llandudno, raised three points, the first of which related to the timing of the count and the delaying of it until the next day. The order requires the count to begin as soon as possible after the close of poll. If appropriate, a returning officer can agree with the counting agents to defer the count until 9 am on the Friday morning. But the Government would normally wish the count to be taken forward with a minimum of delay. My right honourable friend the Secretary of State for Wales has no plans to exercise his power to issue direction that counting be delayed.

The noble Lord, Lord Roberts of Conwy, raised the point about signing the ballot papers. In December, my colleagues at the Department for Constitutional Affairs announced that the Government would not be commencing the requirement for electors to supply a signature before receiving their ballot paper in a polling station. Our general approach is that the conduct of Assembly elections should as nearly as possible be identical to that for elections to the other place, so personal voters will not be required to sign for ballot papers at Assembly elections. The decision not to proceed with the requirement for signatures stemmed from uncertainty over the appropriate sanction if a voter refused to sign. The Government plan to clarify primary legislation at the earliest opportunity to bring a clearer requirement for signatures in polling stations. We shall reflect any changes in future Assembly election orders.

The noble Lord, Lord Roberts of Llandudno, has a concern about the way in which a party is described on the ballot paper. The ballot papers in the order are only illustrations. Only the names or descriptions that a party has registered with the Electoral Commission can appear on the ballot paper, so, subject to sensible safeguards to avoid confusion or giving offence, that is entirely within the party’s control.

The noble Lord, Lord Crickhowell, asked about the collection of personal identifiers—I believe that I have already answered this point—and referred to his wife, who is overseas. I should emphasise that postal voters will have seven weeks to provide personal identifiers. That is the same for parliamentary and local government elections. The noble Lord mentioned the definitions of electoral expenses. Electoral expenses are set out in the Political Parties, Elections and Referendums Act 2000 as amended by the Electoral Administration Act 2006. We have identified those definitions. He also asked whether the timetable impacts on the four principles that he mentioned. I thank him for recognising the vital importance of those principles, which the Government are committed to meeting in full. The present order replicates provisions already implemented for other elections.

I hope that that response answers all the questions that I have been asked. If I have missed any, I will write to the appropriate noble Lord, but in the mean time I commend the order.

My Lords, I appreciate the Minister’s explanation and the clarification that he has given on the timing of postal votes. A lot of effort will have to be made by returning officers to make it clear. I have had serious anxiety about whether it is possible to get documents back from parts of the world where the postal services and so on are not very good. I think that there will be much anxiety on this point and, as those documents go out, more will have to be done to make it clear what the timetable is.

My Lords, in the Box we have representatives from the Wales Office and from the Assembly. I am sure that they have taken on board the valuable points made by the noble Lord, Lord Crickhowell, and will ensure that they are fed to the right sources.

My Lords, following the point of the noble Lord, Lord Crickhowell, about people overseas receiving ballot papers, is there any mechanism to ensure that those in the Armed Forces, perhaps in Iraq or Afghanistan, will be able to receive ballot papers in time to partake in the Assembly elections in May?

My Lords, the Box is indicating that, yes, provisions are in place. I cannot give the noble Lord precise details. I shall write to him and send a copy to everyone else who has taken part in the debate.

My Lords, I thank the Minister for the replies to the points that we have raised in the discussion. One point that concerns me, to which he has not replied, relates to the requirement that at least 20 per cent of postal votes returned should be checked by the returning officer. It is not clear to me what happens if the returning officer detects fraud in any proportion of that 20 per cent. At what stage does he order that there should be a 100 per cent examination of all the postal votes cast?

My Lords, there has been no indication of postal vote fraud in Wales. It is not as live an issue as it may be here in England. The matter is totally at the discretion of the returning officer. Whether the noble Lord thinks that that is a good idea or not, that is the situation. If he sees any sign of postal voting fraud, he has the discretion to take appropriate action.

On Question, Motion agreed to.

My Lords, I beg to move that the House do now adjourn during pleasure until 8.40 pm.

Moved accordingly and, on Question, Motion agreed to.

[The Sitting was suspended from 8.23 to 8.40 pm.]