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Representation of the People (England and Wales) and the Representation of the People (Combination of Polls) (England and Wales) (Amendment) Regulations 2007

Volume 690: debated on Tuesday 20 March 2007

rose to move, That the Grand Committee do report to the House that it has considered the Representation of the People (England and Wales) and the Representation of the People (Combination of Polls) (England and Wales) (Amendment) Regulations 2007.

The noble Lord said: With these regulations we are also debating the draft Local Authorities (Mayoral Elections) (England and Wales) Regulations 2007 In those regulations, I wish to ensure that Committee Members have before them the most recent draft, as there was a small but crucial drafting error in the previous version. The election timetable for mayoral elections will be governed by the regulations. Where polling day is 3 May 2007, that timetable would commence with a notice of election on 27 March. As there are authorities with mayoral elections this year, it is crucial that the regulations are in effect on 27 March. The earlier, incorrect draft of the regulations excluded from their effect elections that commenced on or before 27 March. That would therefore have excluded the very elections that we are especially seeking to capture, that is, those where polling day is 3 May. Accordingly, the most recent, correct draft of the regulations should exclude from their effect at Regulation 1(2) only elections where the last date for notice of election is on or before 26 March.

Despite having been read through by several individuals, that apparent typographical error in the draft was not spotted until after the instrument had been laid and scrutinised by the JCSI. As the significance is, by contrast, large, we have had to withdraw and re-lay the draft with the corrected date, rather than use a correction slip. Given the shortness of time remaining, I am extremely grateful for the assistance provided by the House authorities and the agreement of the chairman of the JCSI that the Committee debate on the re-laid draft can take place before the JCSI re-consideration. Of course, any subsequent Motion for approval on the Floor of the House will take place only after that JCSI reconsideration.

The purpose of the Local Authorities (Mayoral Elections) (England and Wales) Regulations 2007 is to implement the changes made for parliamentary elections by the Electoral Administration Act 2006, so ensuring consistency of electoral practice between the conduct of elections for local councillors and those for local authority mayors held on or after 3 May this year. These include changes to nomination procedures—candidates may use their common names on nomination forms and papers. The rules on the use of authorised descriptions by candidates standing on behalf of registered political parties are amended to reflect amendments made to the Political Parties, Elections and Referendums Act 2000. Returning officers will be able to correct minor errors on nomination papers.

New security measures introduced by the 2006 Act are also provided for in this context and separate security markings and unique identifying marks are required for ballot papers. Ballot paper counterfoils are replaced by corresponding number lists, and postal voters and proxy postal voters are required to provide both their signature and date of birth when returning postal ballot papers.

Alterations are made to the circumstances in which a person may be given a tendered vote. New requirements are introduced as to the information and accessibility of information to be provided by returning officers to electors. Changes are made as to the persons who may be admitted to polling stations and the count to observe elections. Amendments are made to provide for the transmission of information to a presiding officer of alterations to the electoral register taking effect on the day of the poll. Amendments are also made to facilitate the introduction of a scheme for the anonymous registration of certain electors, which is due to come into force on 1 June 2007. Changes are made to the arrangements for the retention and inspection of election documents after the poll. A full set of forms is appended to the rules reflecting the changes made to implement the 2006 Act.

These regulations also increase the election expenses limit for candidates at mayoral elections. The limit is now calculated by taking £2,362 as a base figure and adding 5.9 pence for every entry on the register of electors. This was to allow for inflation and the change was made on the recommendation of the Electoral Commission. The 2002 limit was based on a base figure of £2,000 plus an additional 5 pence for every entry on the register.

When approved, these regulations will replace the Local Authorities (Mayoral Elections) (England and Wales) Regulations 2002 that currently apply to the elections of local mayors. The detailed rules for the conduct of mayoral elections are based on the rules contained in the Local Elections (Principal Areas) (England and Wales) Rules 2006. Throughout May 2006, advisory groups consisting of key interested groups with practical and in-depth knowledge of running elections were asked to provide feedback on how the changes in the Act were being applied for the principal area rules. In addition, the Electoral Commission was also consulted on the detailed provisions in these regulations. Feedback on both cases was very useful and the vast majority of the suggested changes have been incorporated.

The purpose of the Representation of the People (England and Wales) and the Representation of the People (Combination of Polls) (England and Wales) (Amendment) Regulations 2007 is to make changes consequential on the decision not to implement provisions in the Electoral Administration Act 2006 which require a voter in a polling station to provide a signature before being issued with a ballot paper. As a result of this, we are amending the prescribed forms in the Representation of the People (England and Wales) Regulations to remove the signature column from Form L2, the corresponding number list to be used in a polling at a parliamentary election held on its own, and from M2, the equivalent of that form, to be used in polling stations where a parliamentary election is combined with another election or referendum, and remove references to electors signing for their ballot paper in the official poll cards. In these regulations we are also removing references to electors signing for their ballot papers from the guidance for voters that was issued at combined polls. In these regulations we are also correcting minor drafting errors in the Representation of the People (England and Wales) Regulations.

The Electoral Commission was consulted on the provisions in these regulations and its views were taken into account. 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) and the Representation of the People (Combination of Polls) (England and Wales) (Amendment) Regulations 2007.—(Lord Evans of Temple Guiting.)

I thank the Minister for that long introduction. I know that he sat through some of the debates on the electoral Bill although he was not the Minister in charge. It is nice to see him opposite, though I am sorry that I will have to be cross because we are not in a very happy situation. I have not scoured the mayoral elections regulations 2007 but, in the light of what has happened today, I probably should have. I am hoping that they are absolutely as expected.

It is the representation of the people regulations which we are being asked to approve today that cause us the most concern. Throughout the passage of the electoral registration Bill we had enormously long discussions on fraud and the prevention of fraud—particularly by postal voting, where we made considerable changes to the Bill—and the personation of people in polling stations. The Government’s measure provided that people appearing at a polling station should have to sign for their ballot papers. It was generally agreed by everybody that that was an extremely sensible measure. The provision therefore did not command a great deal of attention at the time.

I am, however, bound to say that this is a fiasco of the greatest order. We have local elections coming up this year and local and mayoral elections next year. We have the possibility of a general election at any time after the retirement of the Prime Minister. Yet, these measures which would have ensured that people turning up at polling stations had to sign for their ballot paper are going to be rescinded and will not be available to provide that protection when the election takes place.

I cannot overstate the fact that this is a monumental blunder. The fact that the Electoral Commission, the administrators themselves, had to pick up the fact that there was a flaw—that returning officers would have to give somebody a ballot paper even if they refused to sign—just beggars belief. We have no alternative other than to let this matter go. But I must ask the Minister to tell us when primary legislation will be produced to rectify the matter. This is the second time that we have dealt with this order. We took it through and agreed it in December. Now we are taking it back in March and have to disagree it. So there is clearly a mega-problem. We must know when the primary legislation will be there.

It is not only the Electoral Commission that is concerned about fraud. The commission on standards has pointed out all along that personation at polling stations is one of the major ways of committing fraud in elections. We have spent weeks and weeks trying to tighten up the legislation to ensure that we build out of elections any possibility of fraud; and what happens? The Government have managed to build it all back in again. It is a shambles. I am sure that the Minister, who read the notes very carefully, will agree that this is not the sort of standard that one expects from the Government or from those who draft the legislation. Ultimately we have to agree to the removal of one of the most substantial bits of legislation to prevent fraud.

I have nothing more to say other than to ask when the primary legislation will be introduced. I reiterate that the Government should be very shame-faced over this.

I want to strike a more positive note about the regulations than the noble Baroness, Lady Hanham, did. They bring about the things that we talked about at length during the passage of the Electoral Administration Bill, now the Electoral Administration Act 2006, and bring about new things with which some of us who are concerned with electoral administration issues have been concerned for many years. I am therefore delighted to see most of the provisions. But I would have liked them to go further.

Now is not the time to reopen the debate on matters such as individual voter registration, but I would hope that the Minister noted the comments of the Committee on Standards in Public Life on that. That committee was unduly harsh and unfair to the Electoral Commission on this issue, because the commission argued strongly for individual voter registration, as did a number of us. However, I very much welcome these regulations because they provide for a requirement for a signature and date of birth on applications to vote by post, and it will be possible to check afterwards that the person returning the postal vote is more likely to be the person to whom the postal vote has been allocated. That is very welcome.

As the noble Baroness, Lady Hanham, pointed out, it is more than regrettable that we have failed properly to enact the provision for signing for ballot papers at polling stations. I do not believe that the problem of personation is widespread in Great Britain—the position may be different in Northern Ireland—but it does happen in some places. I recall fighting the Militant Tendency in the 1980s in Liverpool, where personation was a common tactic used at polling stations. Requiring a signature in return for the ballot paper would prevent that sort of abuse—which might be much more widespread in this country if only people knew how easy it was to go to a polling station and impersonate someone. In general, people do not know how easy it is to do that.

I welcome other aspects of the regulations—updating the electoral expense limits is long overdue. But perhaps the Minister will consider an annual system whereby parties would know further in advance whether there might be an increase in electoral expenditure limits. Perhaps in time the commission should be given the job of proposing something formally—say, every December, in line with the RPI, rather than waiting for regulations close to an election. People might then know what the limits will be.

I particularly welcome the provision ensuring that when you apply for a postal vote, you will receive a confirmatory note from the returning officer saying that you have applied for a postal vote from a specific address. That was the subject of fierce debate in this House two years ago. I shall not rehearse all the arguments made in 2004, but some of us felt then that such provision would be an important measure against fraud. I am glad that the Government accepted it in the 2006 legislation and that it is now being implemented.

Finally, it is welcome that the measures required in the Act are to be financed by central government. I understand that there will be an extra £21 million or so for local authorities in England and Wales. It is an important principle that local authorities should not have to choose between the costs of efficient electoral administration and perhaps more popular services. I simply note that £21 million is a small price to pay for proper democracy. It also indicates that democracy costs money. In the wider debates which we will have over the year ahead we should note that we are spending a significant amount on electoral administration and that resources could also be found in the system for paying the other costs of democracy.

I am glad to follow the positive remarks of the noble Lord and I thank my noble friend the Minister for his concise statement. Of course, he carries no responsibility for the areas that are being debated, but he took a positive line in his exposition.

Paragraph 7.3 of the Explanatory Memorandum states that,

“there is a lack of a clear sanction to withhold the ballot paper should an elector refuse to sign”.

Tackling that issue was a central objective of the legislation. Has my noble friend an explanation of how the Government brought forth such defective legislation? Do Ministers know who was responsible for the mistake—for the misjudgment? Was it one person? Was it several members of a legislative team? Should the 2006 Act have been subject to greater and more effective professional scrutiny? Was that the defect in the consideration of all these matters? Do we know the outcome? Have there been any consequences? Is parliamentary draftsmanship in decline? Surely not—yet, as my noble friend said, there was a crucial drafting error and the system did not cope with it. When was the Welsh Assembly’s First Minister informed of the defect? When did the Assembly know that it was not what they thought it was going to be?

The Electoral Commission was the dog that barked. It did its duty, and its scrutiny was effective. But how did lawyers and draftsmen manage to bring forth such defective legislation? Has there been an inquest? Do we know how it happened? Who was responsible? I am not asking to be told who the people were, but does the system know? Have Ministers looked at it to ensure that that sort of thing does not happen again?

I have two quick questions, but the Minister may be relieved to know that they have both been asked by my noble friend Lady Hanham and the noble Lord, Lord Jones. Before I put them, I shall pick up on the point made by the noble Lord, Lord Rennard, on personation; it may not be as widespread as some think it to be, but the problem has always been that we do not have the means of actually knowing. Electoral registration officers have said, “We do not think there’s a problem”, but they have no definitive way of knowing.

I reinforce what my noble friend has said. The Merits of Statutory Instruments Committee has drawn this specially to the attention of the House. It says at the end of its commentary that the consequence of this error is that:

“An important measure to combat electoral fraud will not now be available for the May 2007 elections, and the Government's policy objective of reducing the amount of such fraud may, consequently, be imperfectly achieved”.

That encapsulates the point, and it is damning about how we have got into this situation.

As I say, the questions I was going to ask have been asked. One was that raised by the noble Lord, Lord Jones: how did we get into this situation? I mention in passing the fact that the Government are their own worst enemy. Had they accepted some of the amendments made in Committee, we would have avoided this by going for somewhat more stringent provisions than those the Government pursued.

My second point was simply that raised by my noble friend: when can we expect primary legislation? The Government state that they plan to clarify the primary legislation at the earliest opportunity to bring in a clearer requirement for signatures in polling stations. We need to know just how early that opportunity is, because the situation we are in now requires urgent rectification.

I take no pleasure in this, but it is necessary for me to apologise again to the Committee for the errors that occurred. Obviously they are serious matters. They are rectifiable, but they have happened. In all walks of life errors sometimes occur, and I stand here representing the Government apologising for these errors, remembering the debates we had on the Electoral Administration Bill and remembering well the points the noble Baroness, Lady Hanham, made. I hope the answers I give will go some way to satisfying the anxieties expressed. I am not sure that today I can go all the way, but at least we acknowledge that there is a problem; it is a problem of our own making, and again I apologise for that.

The noble Baroness and other Members of the Committee have asked whether we intend to introduce primary legislation to solve the problem of signatures for ballot papers. Yes, we plan to clarify the matter as soon as possible in order to bring in a clear requirement for signatures in polling stations. As the noble Baroness said, that will require primary legislation. I am afraid that I cannot give a firm commitment on when that will happen, nor can I provide any details of the Government’s legislative programme in future parliamentary Sessions. It is essential, however, that this should happen. It is clear that such an amendment, as I said in my opening remarks, will not be made before the elections in May 2007.

We continue to believe, as do other Members of the Committee, that requiring electors to sign for their ballot papers will bring a number of benefits. Many voters find it reassuring that they have to provide some sort of identification in order to vote. It will also help to deter opportunists—the noble Lord, Lord Rennard, raised this point—from defrauding the system. I know that that answer will not satisfy the noble Baroness but—

It does not satisfy me at all. It is not a surprise because I had already been given the information that the Government had no idea when the measure could be introduced. It must be a one-line Bill. Both opposition parties would see it through quickly. We would not oppose it. We want this measure in. A lot of elections are coming up. If we leave this and the situation just drifts on, the Government having so much legislation that they cannot introduce another Bill, we shall never get it on the statute book. The opposition—certainly the Official Opposition—would co-operate with getting the measure through quickly. I should not think that it needed to be longer than a page with one clause.

The point is well made by the noble Baroness. We shall consider this matter with some urgency and report back to the Committee.

The noble Lord, Lord Rennard, was more positive about the regulations, for which we are grateful. He made a number of general points about what might be done on an annual basis, which we take on board. He asked about individual registration as described in the CSPL report. The Government note the findings of that report and will respond to it in due course. My noble friend Lord Jones asked how the effects came about. Legislation was constructed so that the issue of a ballot paper was conditional on signature. However, there was no specific sanction provision. This gave rise to doubt, a risk of inconsistent approach and a legal challenge. On the advice of the commission and the Association of Electoral Administrators, we have decided not to commence this measure yet, but we take on board all the concerns raised. I say to my noble friend that in any organisation and in any walk of life mistakes are made. I made a huge number in my career as a publisher. It happens. If I may go on the offensive for a moment, it is a bit hard on the Government to take one example and say that it is indicative of something more than a particular incident. I am not in a position, nor would I wish, to start attributing blame for this matter either to Ministers or in particular to civil servants.

My noble friend is heroic in ploughing on as he has. Shall we assume that he will write to Members of the Committee giving details? Shall we assume also that this may be put right in the Queen’s Speech at the beginning of the next Session at the latest?

Is my noble friend asking me to write a letter to the Committee describing where the blame lies for the errors that have been made, or a letter explaining what we plan to do about introducing primary legislation to solve the problem we are discussing?

Not at all, if my noble friend feels that he cannot do that. However, it is reasonable to ask for explanations to be given. With the best will in the world, the explanations given to the questions that I asked were not explanations but simply reiterated the statement that my noble friend made so well in opening the debate.

I hear what my noble friend says. We shall consider the matter that he raised. Problems will have to be addressed.

I accept the point about the problems of attributing blame, but does the Minister accept that it is not as if we are legislating in a completely new area? We have rather extensive experience of legislating on electoral law and it is surprising that a mistake should be made in an area that should be relatively well trodden in drafting terms.

I agree with the noble Lord, but there is nothing more I can say. A mistake has been made and I have apologised to the Committee on behalf of the Government. I have said that we will address the absolutely legitimate concerns raised, particularly by the noble Baroness, Lady Hanham.

I am grateful to my noble friend; he is very patient. If he cannot give the answer to the original questions, there was one other one. Can he say when the Wales Assembly Government were told that this is not likely to take place on 3 May? Does he have an urgent timetable on when to put things right?

I do not have the date when the First Minister was informed of the defect in the legislation, but I shall write with the date on which he was informed and send a copy of that letter to the Committee. Meanwhile, I commend the Regulations to the Committee.

On Question, Motion agreed to.