Committee (16th Day)
Schedule 1 : Further provisions about the referendum
108: Schedule 1, page 20, line 1, leave out “may take whatever steps they think appropriate to” and insert “must”
This is the first amendment I have moved on this Bill this year, for those who keep count of our proceedings. I kept clear of amendments relating to Part 2 of the Bill. I will not be long in speaking to this amendment. Neither the Electoral Commission nor anyone else, for that matter, has ever carried out an exercise across the United Kingdom to explain officially the mechanics of voting systems, whatever they may be. In this case, they are the alternative vote as proposed in the Bill and first past the post.
The Electoral Commission might decide to explain about the alternative vote and might need to indicate that there are at least three alternative vote systems, none of which is proportional. It might decide that it has to counteract the media referring to the alternative vote inaccurately—as, indeed, we in this House have agreed that the Deputy Prime Minister did when referring to it as a system guaranteeing that MPs would be elected by 50 per cent of the electorate, which of course is not what will happen under AV in the Bill. That simply cannot happen in every case.
It is true that I tabled this amendment a long time ago and that a lot of water has gone under the bridge. My noble friend Lord Lipsey has two amendments of substance in this group. My simple view is that it should not be left to the complete discretion of the Electoral Commission as to whether or what information it puts into the public domain. There should be some kind of constraint in the Bill, hence the modesty of my amendment and, indeed, the amendments of substance which my noble friend has tabled. He will go into those in much greater detail than I intend to do. I intend to be brief.
As I have said, I wanted to raise the issue about the discretion of the Electoral Commission over this enterprise which, I repeat, no official body has ever undertaken in the United Kingdom. It is fraught with some difficulty and, in some ways, excitement, as the project has never been undertaken. However, it is one where we in Parliament should say that the Bill should have a little more detail, rather than simply leaving it to whatever steps the commission might think are appropriate or inappropriate. I beg to move.
My Lords, I shall speak to Amendments 110ZZA and 110ZZB, which are grouped with the amendment moved by the noble Lord, Lord Rooker, for the purposes of this debate. Quite recently, although it actually feels like months ago, these matters came up at a reasonably early stage of the Committee, when the Minister jumped to his feet and said that they fell much more naturally to being discussed under Schedule 1 to the Bill. I do not know whether the Minister—he is not with us this afternoon—hoped then that by the time we got around to Schedule 1, we would have forgotten all about them and let them go. As the Committee knows, on this Bill we are, quite rightly, grinding extremely fine so here they are again.
The amendments concern the steps that the Electoral Commission must take to get the electorate informed. Perhaps I might recap on a debate that we were having last night. The background to this is the very wide lack of understanding of the alternatives to be put before the British people in the referendum, whenever that may come. I illustrate this from a poll with a large sample taken by YouGov in September. It asked people whether they had heard of AV and, if so, whether they knew what it meant. To summarise, one-third said that they had heard of AV and had some idea of what it meant. They did not define what “some idea” meant and, if they were examined further, we might find that that was a rather optimistic interpretation of their true state of knowledge. One-third had heard of AV but had no idea of what it meant. One-third had not heard of AV; they also had no idea of what it meant, which is perhaps not surprising since they had never heard of it. That is a long way from where we would want to be when we get around to the referendum.
I am not using this to make a speech for AV or against it. My position is perfectly well known. I simply make the point that the better informed those participating in this referendum are, when it comes about, the more the result will have legitimacy and stability, because we will be able to have confidence that the people really have reached the verdict they wish to reach, on reflection, and that chance factors have not simply swayed it. This is not the job of the Electoral Commission only; it is the job of the campaign organisations on both sides, of our national media—I thought I might get a laugh for that—of politicians and of those who are not political in the party sense but who are interested in politics.
These are great issues for our future as a democracy and all those have a role to play, but the Electoral Commission has a role. It has been created to play a role and it is right that Parliament should give it some specific guidance on the minimum activity which we expect it to undertake in playing that role. If the referendum were to go ahead on 5 May—and I know there are those in this Committee and the government Front Benches who support that—there will be only some 10 weeks between the passage of the legislation and the day when the people deliver their verdict.
My two amendments are straightforward. First, they ask that the Electoral Commission prepares a leaflet that summarises the meaning of the question before people and what its implications would be. It summarises, in an impartial way—because the Electoral Commission owes its whole role to its impartiality—the arguments for and against AV and for and against first past the post, so that any elector wishing to study the matter can see a short summary of the arguments. That is then distributed to every household in the country so that everybody gets their chance to read it. A fairly straightforward proposition, you would think.
The second amendment is slightly tongue in cheek and says that the leaflet should be examined by the Plain English Campaign. Actually, from my own experience as a journalist on the Economist, I think that an Economist journalist would be an alternative because these are both groups of people who are very used to making sure that the language in which complicated ideas are expressed in order to communicate is clear. It is a serious purpose behind a tongue-in-cheek amendment because the number of people who have a natural grasp of voting systems is quite small, as I have shown. The number of people who understand the issues involved on voting reform is also quite small. To produce language which is generally comprehensible is quite complicated.
I know the Electoral Commission tries hard to get its language right. Indeed, it is contemplating producing a consultative document on a public information booklet—not exactly a leaflet but a booklet on the referendum. I have not studied it in detail but it is the kind of thing which could be done with an examination not just for the content but for the clarity of the language in which it is expressed.
It is perfectly true that there is this draft booklet; it is true that the Electoral Commission is of course planning information activities, and it would be wrong to suggest otherwise. But we, as parliamentarians, have a right to expect certain things of the Electoral Commission and to lay down in the Bill that it must perform certain functions. This is all going to be done in a terrific rush, and the commission may get into some sort of difficulty, as its resources are not very great for the task ahead of it, so something has to be dumped. If it is in the Bill, the thing that is dumped cannot be the exercise it mounts to make sure that the public are properly informed. In other words, it is right that the intention of the commission be underlined by Parliament and by provisions of the kind that I propose in this amendment, which is a companion amendment to the wider amendment so ably moved by my noble friend Lord Rooker.
Has the noble Lord put a price on such a leaflet being delivered to every household? How would the Electoral Commission receive the funds for such a leaflet? I imagine that it would be a very expensive proposition because of not only the publishing but delivery to every elector. It would mean that the commission would have to employ part-time leaflet deliverers, which would be a costly exercise in itself.
I am grateful to the noble Lord for that intervention, which enables me to repeat my earlier point. It seems that the Electoral Commission is planning something of this sort anyway, so the cost is not additional to what appears to be planned, unless it is to be dropped down the line.
Could I finish answering the noble Lord’s points before I take a further point from him? We have a costing for this referendum. It is not nil but some of us think that it is well worth it. Democracy comes with a price and it is a price that is very well worth paying. On an issue of this magnitude, the relatively small figures that would be involved in an exercise of this kind are part of that worthwhile price.
It is one thing for an organisation to publish a leaflet. The Forestry Commission or the National Trust could publish a leaflet that organisations could pick up on a voluntary basis. However, it is another thing to publish a leaflet and give an assurance that it will be delivered to every elector—or every elector’s home—throughout the United Kingdom. That is a costly exercise by any stretch of the imagination. The amendment also asks to put into legislation that there shall be a leaflet, whereas the Electoral Commission might say that local radio, or national television for that matter, is the better way to communicate.
I am grateful for those points, too. On the latter point, these are not alternatives; they are designed to supplement each other, but a leaflet that can be studied at leisure and revisited has a different impact from that of a television programme, although I agree that they are complementary. As far as cost is concerned, we need to keep a sense of proportion. After all, every household gets a poll card. Nobody thinks, “Oh God, it is so expensive sending these poll cards. People don’t need them to vote. Elections are so unimportant that we could avoid the cost of a poll card in future”. Indeed, I believe that electoral law provides for the political parties to send one leaflet to every household in the country. The noble Lord, who knows much more about the House of Commons than I have ever known, will correct me if I am wrong but I believe that also takes place. We should not think that sending a leaflet to every household would mean great disproportionate expenditure. It is not a major logistical exercise of its kind and will not cause the budget deficit to soar where otherwise it would shrink.
My Lords, continuing my attempt to be reasonably even-handed in these debates, I have a variety of views.
On the previous exchange, which I had not expected, I am entirely on the side of the noble Lord, Lord Lipsey, because I am aware that there are endless examples of requirements or practices that ensure that information is delivered to all households in the country. I guess that the latest such example is the widespread circulation of leaflets on how to avoid flu during the winter, but there have certainly been electoral examples as well.
On the amendments, my feelings are mixed. I half sympathise with the amendment of the noble Lord, Lord Rooker; I am worried about the first amendment of the noble Lord, Lord Lipsey—for reasons that I will come back to—but I support his second amendment very strongly because, whatever materials are produced, it would be helpful if they were looked over by someone who writes the kind of English that everybody can understand. One of our latest arrivals, the noble Baroness, Lady Lister, will recognise from our association some 30 years ago that I used to be driven to distraction by social security material being produced in a form that no normal person could understand. I seem to remember that we got the Plain English Campaign involved to try to help us improve things, and I think that they have improved. Some effort needs to be put into making sure that whatever goes out uses terms that can be understood.
Lastly and briefly, my reservations about the intermediate amendment of the noble Lord, Lord Lipsey, are that, by putting in a legal requirement for a leaflet to be “impartial and unbiased”, we would be incorporating a matter of judgment that it appears to me would, in certain circumstances, keep the courts—I am conscious that there are many noble and learned Lords here—occupied for years. I see the noble Lord, Lord Phillips, smiling, as he knows that his firm could do it.
I am not saying that that would happen.
I think that we need to rely on the good faith of the Electoral Commission, which clearly seeks to do everything in an unbiased and impartial way, but making that a statutory requirement would raise a lot of questions that we might not want to answer.
I have considerable agreement with the noble Lord, Lord Newton, on the very difficult issues raised by this profoundly important set of amendments. If my memory serves me correctly, the last time that I discussed the matter with the Electoral Commission, it was talking about preparing a leaflet or pamphlet on this very issue. I think that the same issue came up on Second Reading, too. The difficulty is ensuring that the leaflet is right and unbiased. I phoned the Electoral Commission this morning to find out the latest position and, perhaps slightly worryingly, both the numbers that I normally use and get through on without any trouble were unobtainable. I am sure that there is a very good explanation and that I will be able to get through soon, but that means that I cannot tell the House where the Electoral Commission is up to on this important issue.
The amendments from the noble Lords, Lord Lipsey and Lord Rooker, spell out the right principle that we need material that says, in plain English, what an alternative voting slip will look like and so on. However, as soon as we get into explaining how the system works, we are in much more difficulty. It is very hard to write a leaflet on how a voting system works—particularly how it works in comparison to an existing system—without getting into a minefield of problems about possible outcomes or computations of the effect of one’s vote. There is a lot in Amendment 109A, in the name of my noble and learned friend Lord Falconer, that if we are to go down this road, having the Speaker’s committee involved in the Electoral Commission would be a good idea to provide some political insight. Otherwise, I can envisage that the leaflet that might come out could produce literally thousands of phone calls from political parties and their agents up and down the land saying, “This is biased”. That is only a short step away from the courts. The same point might be made about the amendment of the noble Lord, Lord Phillips of Sudbury—we would get into an absolute minefield.
I hope that the Government will give this serious thought. The Government may already have talked to the Electoral Commission—perhaps they had another phone number that worked this morning that I did not have. I know that the commission is exercised by the issue and is keen both to get the information out to the public about the importance of the referendum and to convey information to people about the different voting system. However, if we are to go down the road of requiring rather more detail on the effect, we have to look much more carefully at Amendment 109A in the name of my noble and learned friend Lord Falconer, which would at least provide for some political control. Without that, the Electoral Commission will, frankly, be hung out to dry and probably crucified as well.
I hope that the Government will give this important issue careful thought, given that, as my noble friend Lord Lipsey said, we have done so little on this and the changes will all come very suddenly. We must make a major effort to convey to the public the importance of this vote. On that point, my noble friend Lord Lipsey is absolutely right. The problem is what should be put into or left out of the leaflet.
My Lords, I completely support the spirit of this group of amendments. If all goes well—I nearly said “according to plan” but that would be giving a hostage to fortune—and the Bill gets through in time for the referendum to be held in May, there will be no time to lose. I think that every Member of the House concurs with the spirit that, if we are to have a referendum, we should ensure that it works as well as it possibly can and that as many as possible of our fellow countrymen and women take part in it.
I agree wholly with the amendment of the noble Lord, Lord Rooker, which would remove the discretion by simply obliging the Electoral Commission to provide information about each of the two voting systems. If the Government accept Amendment 108 in the name of the noble Lord, Lord Rooker, the first provision in Amendment 110ZZA, in the name of the noble Lord, Lord Lipsey, would be superfluous.
On the point made by the noble Lord, Lord Newton—he cast a fly in my direction, at which I leap—micro legislation is indeed food for lawyers and I am all agin it. However, I consider that the more dangerous provision in the amendment of the noble Lord, Lord Lipsey, in terms of “lawyerisation”, is its second provision, which would require that the leaflet,
“summarise the main arguments for and against first-pass-the-post and the alternative vote”.
There is much more room for lawyers to haggle over that before Her Majesty’s courts than there is over the “impartial and unbiased” provision. However, I suggest that the noble Lord, Lord Lipsey, should sleep on his amendment, given that its only essential provision—that is, the distribution to all households—should be taken care of by the amendment of the noble Lord, Lord Rooker. If the Electoral Commission is required to provide information about each of the two systems, surely that means delivery of information to every house. If there is any doubt about that, a change can be brought forward at the next stage.
I sympathise with the noble Lord, Lord Soley, because I did exactly as he did and had the same rather ghostly result. I tried three Electoral Commission numbers, which were all disconnected. However, I was informed a week ago by the commission that it is not disconnected and that it will definitely produce a leaflet that will be delivered to every household, so perhaps we can sleep soundly on that.
The plain English idea must be a good suggestion. Describing these two systems in the best and most limpid form that John Bull can understand on a bad night is essential. That amendment would be a step in the right direction.
My Lords, before getting to the substantive remarks that I wanted to make, as we have heard two interesting speeches I wonder whether it might be in order for the Leader of the House, on behalf of the House itself, formally to draw to the attention of the Electoral Commission the fact that noble Lords on both sides of the House appear to have had considerable difficulty getting in touch with the Electoral Commission by telephone. That is obviously a rather disturbing situation, particularly when everybody agrees that the Electoral Commission must play the key role in keeping the public informed as we move forward towards this referendum—if, indeed, we do. Although it would be nice to think that the staff of the Electoral Commission spent their free time reading Hansard of either House, that may be a rather hopeful assumption to make.
I hope that, by whatever means, the Electoral Commission will address the issue raised by these two incidents, which hardly look as if they are purely coincidence. If noble Lords cannot get an answer from the Electoral Commission, what are the chances of an ordinary member of the public doing so? I suspect that that is a matter of concern not just to me but to the whole House.
My Lords, it may be helpful if I deal with this issue because I understand that the Electoral Commission has just moved offices. That is why the old phone number does not work. The new phone numbers should be available in the normal way and we can make them available. If anybody wants them, they can call my office and we can get them to them. I am assured that the Electoral Commission takes great care and notice of what happens here.
My Lords, I think there is a greater likelihood of the Electoral Commission reading Hansard than members of the general public. Maybe I am wrong about that.
However, I can also say that the Electoral Commission’s website is really excellent and a great deal of the information that we have been discussing this afternoon is on it. I will give a fuller response later on but I think the noble Lord, Lord Low, is trying to get in.
I hope that I did not give the impression that I had concluded my remarks. Of course I shall give way in a moment to the noble Lord, Lord Low, with great pleasure but I suspect he wishes to speak to his amendment and perhaps the right time to do that will be when I have concluded my remarks, which will not be very lengthy.
Just before I leave the issue of the Electoral Commission, I have to respond to the Leader of the House. Those of us with a background in the private sector know that when you move offices and no longer answer your telephone you go out of business very quickly, and I do not think that that is a very satisfactory excuse coming from a public sector body either.
I very much support both my noble friends Lord Rooker and Lord Lipsey in the amendments they put forward and the initiatives they have taken, although I have a number of reservations about the wording of one amendment of the noble Lord, Lord Lipsey, which I shall come to in a moment. I think they must have had the same reaction as I did when I read the Bill. There is a rather marked antithesis, and a slightly disturbing one, between paragraph 9(1) of Schedule 1:
“The Electoral Commission must take whatever steps they think appropriate to promote public awareness about the referendum and how to vote in it”,
and paragraph 9(2), which then states:
“The Electoral Commission may take whatever steps they think appropriate to provide, for persons entitled to vote in the referendum, information about each of the two voting systems referred to in the referendum question”.
Particularly coming straight after “must”, “may” reads very weakly—it seems almost a sort of casual afterthought—and I do not think that is good enough. If we are to have a referendum in this country on quite a complex new constitutional issue, it is absolutely essential that members of the public have the opportunity to understand what it is all about. I therefore think it very reasonable that we should say “must” in paragraph 9(2) which, of course, is the effect of the amendment of my noble friend Lord Rooker.
I very much agree with my noble friend Lord Lipsey that it is right to produce a pamphlet on the subject. As one of his own amendments states, the information effort should include the publication of a pamphlet and does not exclude other things. I hope that the Electoral Commission will have a budget which can indeed be used, as the noble Lord, Lord Martin, has suggested, for television coverage of the issue as well, or even possibly local radio, as he suggested. That is highly desirable.
I have to say, however, that my breath was slightly taken away by the phrase in the third sentence of my noble friend Lord Lipsey’s Amendment 110ZZA:
“The leaflet shall be impartial and unbiased”.
I found myself reading that two or three times and thinking carefully whether a leaflet could be “impartial and unbiased”—indeed, whether any opinion of this kind could be “impartial and unbiased”. Of course, as a practical issue, we regularly expect certain people and certain functions to be impartial and unbiased—judges and juries would be an obvious example. However, they are being impartial and unbiased in relation to the establishment of a fact: whether so-and-so killed the victim or whether so-and-so stole the goods is a matter of fact. Here, we are asking for the production of an impartial and unbiased opinion—
Is it not a fact also that, when a jury comes to its determination, it has had the points for and the points against put not by some impartial body but by counsel for the prosecution before counsel for the defence? Therefore, maybe the two sides of this argument should set out the case themselves.
I do not know whether I should be grateful for my noble friend’s intervention or not. I totally agree with him on the one hand, but on the other he has just taken away the point I was about to make myself. I was hoping I was going to be the first in the debate to raise those particular solutions. However, he is perfectly right and I think, before the House accepts the words that would actually go in the Bill, it needs to think very carefully about putting a responsibility on any human being or set of human beings to produce an opinion on something which is impartial and unbiased.
The House could have an interesting philosophical discussion about this during the afternoon. It might be a slightly esoteric discussion for a legislative assembly, but it would be intellectually stimulating. I do not intend to go into it for very long. Perhaps it would be fair to summarise, in a way that nobody will want to disagree with, that there are two strands of post-Enlightenment philosophy, the positivist and the anti-positivist. The anti-positivist tradition of Hegel and Heidegger—the post-modernists—would say that there is no such thing as objective reality, that no one's opinion is ever better than anybody else's and that you cannot meaningfully suggest that it is. That would dispense altogether with the idea of producing this definitive, impartial and unbiased opinion.
Those in the positivist tradition would say that there is such a thing as objective reality and that one can apprehend it through sense impressions, so that it would be perfectly possible to say, if one were making a statement of fact, that it is impartial and unbiased. This is also the case with analytic statements that are true by definition: they, too, could be made impartially and in an unbiased fashion. However, it would be quite unreasonable to suggest that a normative statement—for example, about the strengths and weaknesses of a particular voting system—could ever be stated in a way that could be described as impartial or unbiased.
Leaving aside philosophy and turning to practical politics, I cannot imagine that anybody in the highly charged political debate over this referendum would ever credit the other side with a statement that they regarded as impartial and unbiased. If they disagreed with anything in a summary of the case for or against produced by the Electoral Commission or any other body, they would certainly denounce it as not being impartial or unbiased. That would tend to discredit the Electoral Commission if it was the originator of that summary or opinion. That is why I come back to my noble friend's suggestion, which I was intending to make myself, that it might be much more effective if the commission allowed itself to be simply the medium of distribution of two documents, one to be produced by the pros and the other by the antis.
I am old enough to remember the first national political campaign in which I played a part, namely the 1975 referendum on our remaining in the European Community, as it was then called. We did exactly that. The pros and the antis were both invited to produce a summary of their views to a given length, which were distributed free to every household in the country. That is the system we have through the freepost opportunity that every political party has at a general election to distribute its manifesto to every household in every constituency.
I wonder if my noble friend would make a judgment if I offered him what I consider to be an impartial, unbiased and factual statement about the alternative vote system, namely that the system offered in this referendum is used by just three countries in the world and one of them is trying to get rid of it. That seems to me to be a statement of fact: is that something that he would recommend for a leaflet?
Indeed, as a statement of fact—I return to my philosophical discussion—that would be unexceptionable and unchallengeable. Of course, the way that a fact is stated immediately opens the author of the document to the charge that he or she has been selective and could equally well have set out the facts in an equally amusing or effective way that brought fire to bear on the other side of the question. My noble friend summarises brilliantly exactly the problems that will be encountered by anybody, however honest a man or woman he or she is, who sets out to produce something that will be characterised by the law of the land—by statute—as impartial and unbiased. That is probably asking something that no human being can do. None of us could produce an opinion that was genuinely unbiased and impartial. It is philosophically impossible and practically impossible in any political argument.
Therefore, while I totally agree with what my noble friend Lord Lipsey says, Parliament needs to place an obligation on the Electoral Commission to ensure that the public are properly informed about the choice that they must make, and about the characteristics of the two electoral systems. It is absolutely crucial that the Electoral Commission itself does not in any way risk its own credibility and integrity by putting its name to such a document. The suggestion that the Electoral Commission should distribute documents by the two campaigns would be a much better one as a result.
My Lords, I apologise to the noble Lord, Lord Davies. I did not mean to interrupt him. I thought that he had got to the end of his remarks. Indeed, I am extremely grateful that he continued because I thought that, before he moved to the outer reaches of philosophy, he made a very strong point when he referred to the sharp antithesis between “must” and “may” in the clause. I thought that that point lent considerable additional weight to Amendment 108, moved by the noble Lord, Lord Rooker. I got a bit more worried as the speech by the noble Lord, Lord Davies, continued because I was getting a message from my BrailleNote here that the battery was about to run out. I think there is just enough left for me to say that I rise briefly in support of this group of amendments. Amendment 109 is in my name and is substantially to the same effect as Amendment 108, moved by the noble Lord, Lord Rooker. Both require the Electoral Commission to provide information about each of the voting systems referred to in the referendum question. In conjunction with Amendment 110, which we discussed last night, these amendments place on the Electoral Commission a duty to take steps to ensure that disabled voters are able to access information and support to facilitate their understanding and participation in voting and elections.
I also welcome Amendment 110ZZA, moved by the noble Lord, Lord Lipsey. All I would say is that steps need to be taken to ensure that the leaflet referred to in the amendment is made accessible to people who have difficulty in reading print. For example, the leaflet would need to advertise on it—in at least 14-point type, I would hope—the availability of other formats such as large print, Braille and audio, and a number to call to request these formats. Furthermore, alternative formats would have to be available at the same time as the print version, otherwise people who cannot read print would be put at a disadvantage compared to those who are able to read the printed leaflet.
On Amendment 110ZZB, the requirement to seek the advice of the Plain English Campaign on information materials, although it might strike a blow at the legal profession, seems a sensible suggestion considering the complexity of explaining the rival voting systems and it could certainly help in making the material accessible to people with learning disabilities, who may have need of an EasyRead version. Therefore I support all the amendments in this group.
My Lords, I follow the noble Lord, Lord Low, who has been a great champion of those with disabilities in the House. He shows some of the reasons for this House in the way in which he is able to contribute. I should like to say briefly how much I agree with what my noble friend Lord Davies has said. We have had many allusions in the debate, often in the small reaches of the morning, but I do not think that Hegel and—was it Nietzsche?
I do not think that Hegel and Heidegger have been alluded to so far. However, following that philosophic allusion, I wonder whether one might follow the Marxist dialectic and have a thesis, an antithesis and a synthesis. If there were two umbrella organisations, we would have to give thought as to who would compose these arguments on both sides of the divide; and this assumes that there are people who are acceptable and that there are relevant umbrella organisations. This will probably be the case, even though there may be differences within those umbrella organisations. If there are such organisations, it may be that they would have to submit, in draft, their proposals to the Electoral Commission, which could ensure that they are broadly acceptable.
Let me come first to the synthesis and then I shall give way to my noble friend. The Electoral Commission itself, having looked at the thesis and the antithesis, in the normal direct way, can then come forward with its synthesis of those areas which it thinks are of importance for the voter and which have not been touched on by the protagonists.
I am grateful to my noble friend for giving way. My concept was that the individual elector would provide his or her own synthesis from the materials provided by the two campaigns. I totally agree with my noble friend, from a practical standpoint, that my suggestion will not work unless there are two clear campaigns run by some accepted umbrella organisation. It would, of course, be for the Electoral Commission to satisfy itself that those two campaigns were generally national umbrella organisations, accepted by all the groups within each particular side of the campaign. That worked in 1975, as my noble friend, who was also alive at the time, will recall, but it would not work if there were just a whole lot of different groups and multifarious and multifaceted voices of various kinds on both sides. That would be a very untidy and very difficult campaign. I hope that the rather more clear-cut choice, which the public were offered in 1975 on another important constitutional issue, could be replicated. It would be for the Electoral Commission to decide that point.
In God-like isolation, he may well. I suspect that even Mr Clegg, if it is before three o'clock in the afternoon, may well reach the view that he prefers other systems. There is a variety of systems and it is clear that the alternative vote is a totally orphan system. Certainly, the Conservative Party does not favour it. On the whole, it prefers the first past the post system. At the time of the last election, the Labour Party did, but clearly the public—
That just shows the interesting way in which there are many rather odd bedfellows. If people were given an absolute choice, I do not think that they would put that first on their list. Certainly Mr Clegg would prefer another system; Mr Cameron would prefer another system; and, although I have not spoken to the leader of my party on this, or indeed on any other matter, I suspect that he also would prefer another system. So we come to the point that no one would presumably claim support for the alternative vote. I can imagine, on the other hand, a whole series of problems because if there were to be an umbrella organisation against the alternative vote, it would be a ragbag of views. There would be a great variety of views in that. To have a legitimate group on either side of the argument will prove extraordinarily difficult. Let us assume that eventually one can fund a group, an umbrella organisation, on both sides. Clearly, some of the arguments are likely to be omitted, hence the reason for the Electoral Commission to vet those drafts which have been put out by the other organisations. In seeking to be impartial, in seeking to reconcile and in seeking to bridge that gap and to be a Marxist synthesis following Hegel and Heidegger, clearly the Electoral Commission itself may have to play that role and seek to put forward a more objective middle way to the two groups if they can be found to work together.
My Lords, I suspect that the reason why the Electoral Commission has taken the phone off the hook is that it is suffering from a surfeit of parliamentary advice. I do not doubt that it always welcomes the advice of my noble friend Lord Soley, but none the less, every now and again, it needs a respite. That is why I tend to favour Amendment 109 in the name of the noble Lord, Lord Low of Dalston. He said that the words of his amendment are largely to the same effect as those of the amendment in the name of my noble friend Lord Rooker, but there is an important distinction. The noble Lord’s amendment would not take out the words that the Electoral Commission,
“may take whatever steps they think appropriate to”.
My noble friend Lord Rooker's amendment leads to the more prescriptive approach embodied in the amendment of my noble friend Lord Lipsey. I tend to side with the noble Lord, Lord Newton, on this: it may be wise to give a pretty large discretion to the Electoral Commission as to how it handles the matter.
In a way, the amendment tabled by my noble friend Lord Lipsey demonstrates the difficulty for the Electoral Commission in performing what would seem a pretty simple function of providing information to those who will be about to vote in the referendum. For example, we have already discussed the requirement in my noble friend Lord Lipsey's amendment that it should,
“summarise the main arguments for and against first-past-the-post and the alternative vote”.
My noble friend Lord Davies of Stamford explained in some depth the reasons why that is not easy.
Unlike my noble friends Lord Davies and Lord Anderson, I think it would be desirable to have a phase of information and education to enable electors, as far as possible, to understand from impartial sources the nature of the choice that they will be invited to make. Later, we get into the propaganda war and the clash of the campaigns. At that point, if people have been provided with neutral information, they may well be better able to assess for themselves the merits of the arguments put forward by the two sides in the campaign.
It is desirable that something such as my noble friend Lord Lipsey proposes should be achieved, but I do not doubt that it is exceedingly difficult to summarise those arguments objectively and in an “impartial and unbiased” fashion, as the amendment requires. If it is to be done, it will take time. That is one reason why it is so fortunate that the Committee previously accepted the amendment proposed by my noble friend Lord Rooker to provide flexibility for the date of the referendum until October. As other noble Lords have said, if we are going to do this, we need to do it properly. It is too good an opportunity to waste. It is too important an issue to be rushed and muddled. If people are, in an extraordinarily rare opportunity, to have the chance to decide whether the existing electoral system should be retained or another put in its place, they need time to reflect carefully on the basis of a secure understanding of the issues. I think that it will be very difficult for that process of information, education and the gaining of understanding to be achieved in the very short interval that now remains before 5 May.
Also, if the arguments are to be set forth by the Electoral Commission in an impartial and unbiased way, as has been suggested earlier, there is the risk that people who are dissatisfied with the way in which the arguments on one side or another are set out will complain and might seek remedy by way of judicial review. The whole process could become very vexed. My noble friend's amendment demonstrates the extreme difficulty of the Electoral Commission doing that job but, none the less, it is a job that it would be good if it were done.
Another difficulty about achieving an impartial and unbiased explanation of the choices to be made is that academic evidence shows that the more people understand about the alternative vote system of election, the less they like it. If you have full information explaining how this system works, the consequence is that people become disposed to reject such a system. It might be claimed that in no circumstances could the explanation be regarded as unbiased. It is riddled with difficulties the more we think about it. There certainly should be unbiased information and clarity in the way the information is provided. These are highly desirable objectives. I do not know whether before tabling his second amendment, Amendment 110ZZB, my noble friend discovered whether the Plain English Campaign is willing to be co-opted, but I am sure it is because it has been a very good servant of us all, including benefits claimants.
Why not just send them a copy of the election that took place in the House of Lords in 2003? You could not get a more educated electorate than the one we have here. There were 603 Peers eligible to vote and 423 voted. There were 82 candidates. The successful candidate was chosen after the 42nd transfer of votes or recount, and I am told that one Peer voted from one to 82. I have no doubt that number 1 was a great friend of his, but I do not think 82 was a particular friend. I think that would be the best way to educate the public.
Another thing about new systems is that when the European Parliament was set up my noble friend Lady Quin was the first MEP for our area. If you went into Jarrow shopping centre and asked who the MEP was, people would say “Joyce Quin”. If you went today, nobody would know who the MEP is.
Everything that my noble friend Lord Dixon has just said should definitely go into the leaflet, as should the remarks of my noble friend Lord Grocott. If the leaflet is a little bit longer, so be it. My noble friend Lord Lipsey wants the leaflet to summarise the meaning of the referendum question. I see difficulty in that because one would hope that the question that would be put to people in the referendum would be so succinct and easy to comprehend that it would be incapable of being summarised in the way that my noble friend has suggested. There is a good deal to think about.
My final worry is that a leaflet coming through the letterboxes of the land would on a great many doormats be regarded as junk mail and the chances are that it would not even get read. How the Electoral Commission is to acquit itself of its responsibilities and inform the people of this country about the nature of choice they have to make bristles with difficulty, and I am not at all convinced that we should be very prescriptive or contend that we know best how this should be done. I therefore tend to favour the amendment tabled by the noble Lord, Lord Low of Dalston.
This matter should be decided by pragmatism rather than philosophy. I suggest to the noble Lord, Lord Davies of Stamford, that the contrast between paragraph 9(1) and paragraph 9(2) makes perfect sense. The Electoral Commission has a duty to inform people about the existence of the referendum and about how to vote in it, and so it should. It is given a discretion about whether it attempts to summarise the arguments on both sides. The reason it is given a discretion is because whether and to what extent it should inform people on those controversial matters depends on how much other information people are going to receive on both sides. As has already been said by many noble Lords, it depends on whether it can do that job impartially, which is exceptionally difficult, and it depends on the time constraints.
I hesitate to interrupt the noble Lord’s flow, but would he like to reconsider? He has just said that the Electoral Commission has the discretion to summarise the arguments on each side. I do not believe that that is what paragraph 9(2) says. The Electoral Commission has the discretion to summarise,
“information about each of the … voting systems”,
which is not the same as the arguments.
That is information about the detail of the competing voting systems which are under discussion in the referendum. It is one thing to say to the Electoral Commission, “You must tell people about the existence of the referendum, their right to vote, and when it is going to take place”. That is perfectly sensible and it must do that.
I heard the noble Lord submit that the discretion of the Electoral Commission on whether to give information by way of an information pamphlet will depend—or should depend—on how much information is available from other sources. How will it know, in a timely manner, how much information will be available from other sources? Clearly the other sources could include the umbrella organisations; they could include newspapers which, no doubt, will take sides during the campaign. If the Electoral Commission is to publish a leaflet, it must surely know in very good time how much information is to be provided from other sources.
I respectfully take the noble Lord’s point. I therefore assume that in the proper exercise of the discretion rightly given to it by paragraph 9 (2), the Electoral Commission will be preparing material which it may decide is appropriate to send to members of the public. But that is a matter for the commission.
As the point has already been made, there is no reference to summarising anything in this paragraph. It says:
“The Electoral Commission may take whatever steps they think appropriate to provide information”.
I hope the noble Lord agrees with me that that could equally well cover my proposal of arranging for the distribution of material produced by, for example, the organisations running the two campaigns. It is very important that we make it clear that there is that possibility there. That is encompassed within the existing text. The suggestion of summarising something, or producing pamphlets, is an additional issue that we are raising today in the course of debating these amendments.
I agree with the noble Lord, Lord Davies of Stamford, and that is why I am perfectly content with the existing wording which gives a free discretion to the Electoral Commission to take such steps as it thinks appropriate in all the circumstances as they transpire. We are making heavy weather of this.
The Leader of the House, who is replying on this debate, has a very important task before him. Whatever he is going to do with the various amendments, it is plain that, in the light of the time constraints under which he and the Committee are having to work, he has a herculean task in guiding the Committee and in guiding the Bill into an acceptable form. Even in this House, where perhaps we are better informed than any other forum, there is uncertainty about the interpretation of the Bill.
The Leader of the House will remember, as I do, the 1975 referendum, when I was the Member of Parliament for Edmonton. I did what I had to do. I wrote articles for the local press, and had various meetings, but finally my dilemma on how my constituency wanted me to vote was resolved. My constituents in Edmonton quite clearly said to me, by two to one, that they were in favour of staying in the Common Market. After all the work that had been done in the campaigns and by the political parties, I received three letters—two of them were in favour and one of them was against.
Those who are seeking to alter the system have a great responsibility. I do not doubt for a moment their sincerity in believing that there is a better system, but it is clear from what has been said that changing from first past the post means that there is a herculean task ahead for all of us to persuade people that there is a better system. In three months’ time we will have the referendum, if the Bill in fact passes, so there is a great responsibility on everyone in this House.
Sometimes I think that we take too much for granted and that matters that move us in this place are a common expression of the views of the people in the constituencies and in the country. I do not think that that is necessarily so. I hope very much that the Leader of the House, in replying to the debate, recognises that he now has an opportunity not only to guide the Bill, but to assuage the passions that will be unleashed upon him when a decision is taken. We will face many problems on Report and at later stages of this Bill, so I would welcome a lead from the Minister to indicate that this is a matter upon which he and his colleagues will reflect in a timely way in order to guide the House.
My Lords, in his contribution the noble Lord, Lord Pannick, took the view that the Electoral Commission should exercise discretion. There was a meeting here two months ago in Committee Room 4, and Members from across the House attended that meeting with representatives from the Electoral Commission. During the course of the meeting it became very clear that they will do everything possible to avoid being involved in the actual debate that takes place. With that in mind, some of us are very worried about whether at some stage the public are going to be given factual information as to what the referendum is all about. That is a genuine worry. I am in favour of the referendum and I am in favour of electoral reform, but I am concerned because the debate will become very heated and, to put it bluntly, lots of lies will be told. Millions of leaflets will be sent out that, on both sides, will not reveal the truth. Someone, somewhere, has to set out the basis on which the referendum is taking place, the truth about the question, and its implications.
There is an additional problem, and that is that not every household in the country will receive yes and no leaflets. There will be large tracts of the United Kingdom where no leaflets at all will be dropped because the organisers of the campaigns will simply not have the resources to do that. In those circumstances—I understand that the Electoral Commission has already agreed that a leaflet will be going out—a leaflet has to be sent. My question is this: what will be in that leaflet?
I thank my noble friend for giving way. Does he not accept that it will not be just one leaflet because there need to be leaflets to explain this in Punjabi, Gujarati, Urdu, Mandarin Chinese and a whole range of languages, and particularly that there will need to be one in Welsh? He will remember that the noble Lord, Elystan-Morgan, said that the translation of the question came out as something like, “Do you believe in God or would you prefer a daffodil?”. Somebody has got to explain it.
I understand that my noble friend will be part of the no campaign and I am sure that he will be impressing on his friends the need to send out leaflets in all those languages. But I would not wish to impose that responsibility on the Electoral Commission. However, I am sure that my noble friend and I can debate these matters on Report.
I made a joke at the end of my remarks, but there is a serious point to be made about the leaflet being available in other languages. I was talking the other day to the Member of Parliament for Dewsbury about the large number of people in the constituency he represents who do not speak a word of English but who will have a vote in this referendum. How are they going to understand what they should be doing?
If my noble friend feels that strongly about the matter, he can table an amendment, put the proposition to the House and we can vote on it, if that is the way he wishes to go.
I go further than most Members who have intervened in the debate in terms of the information that I believe should be included in the leaflet. First, it should be set out by the Electoral Commission where it is used. My noble friend Lord Grocott intervened to pose the important question of where AV is used, and the public need to know. Secondly, the public need to be informed that it is not a proportional representation system. There will be a great deal of misrepresentation during the course of the campaign about whether or not this is PR. It is not proportional representation and the Electoral Commission should make that clear. Thirdly, there will be a great deal of misrepresentation over the proportion of the electorate that a candidate is required to have to secure election—in other words, the argument about 50 per cent. Leaflets which refer to the 50 per cent are already being distributed and politicians are going on television stating that there is a 50 per cent requirement. Indeed, Jane Kennedy, a former Member of the other House, has recently written to a number of people in the no campaign drawing attention to inaccurate information which has been put out by the yes campaign. This is only the start; how much more difficult will it get?
There is a need to draw a distinction between the different AV systems because, with the media targeting the debate during the course of the campaign—as they inevitably will—they will draw on the distinctions between the three systems of AV, to which I have referred in previous debates. The Electoral Commission should make it clear exactly which one is being adopted but refer to the other two—one of which is the system used for the election of mayors in the United Kingdom.
The Electoral Commission should also point in its leaflet to the relevance of the need to use all preferences during the course of the ballot that takes place under AV—again I refer to the distinction between the Australian Queensland system and the conventional system used in Australia in federal elections—and that can be done in fairly simple language.
It also needs to be pointed out—this is far more argumentative—that AV does not necessarily lead to coalitions. Factually, it does not necessarily lead to coalitions, and yet the no campaign is arguing that coalitions are the inevitable consequence of the introduction of the alternative vote. That is not the case. It does lead to coalitions in certain circumstances but not in others. There are many issues which my noble friend Lord Davies would argue indicate an element of bias but which I believe should be factually placed before the electorate to enable them to take a proper decision.
Finally, I return to the timing of the referendum, an issue we debated last night. One of my fears is what will happen to the leaflets during the course of the referendum. If the referendum was held on a separate date, referendum leaflets would go through letter boxes all over the country. As it is, because the referendum is to take place on the same day as elections in various parts of the United Kingdom, referendum leaflets will be mixed with election leaflets and many will go in the bin. I am very sorry, but that is the case. Again I say to the Liberal Democrats that they have chosen the wrong date and, even at this late stage, they should revisit the decisions they have taken on these matters and which they have forced upon the coalition.
My Lords, I would happily support the amendment of the noble Lord, Lord Rooker, which would leave out,
“may take whatever steps they think appropriate to”
and insert “must”, but I am worried about the preparation of the leaflets. As I mentioned in my previous intervention, Amendment 110ZZA would provide that,
“The leaflet shall be distributed, so far as is practicable, to all households in the United Kingdom”.
When I asked, no one had put a price on such a project, although it would be a very costly project indeed. Although I have always taken advice from the noble Lord, Lord Newton—in another place, he was Leader of the House, and a very good Leader at that—I must advise him that those health leaflets did not come through in Scotland, possibly because of the devolved arrangements. I do not know whether such leaflets would have gone out under the auspices of the local health board or of a government department, but I worry about legislating that a specific body—namely, the Electoral Commission—publish leaflets and distribute them to every household in the land. That is a tall order for the Electoral Commission. With great respect, some Members of this House do not know just how big or small the Electoral Commission is. There is a limit to its resources.
My recollection—I reflect a point made by the noble Lord, Lord Lipsey—is that in the days now a bit far off when I was a Member of Parliament, there was a legal requirement on the Post Office to deliver an election leaflet to every household during a general election. We all had supporters who spent hours writing out these things and delivering them to the Post Office. Even now, the Post Office has a universal delivery obligation. All the Government have to do is pay for the production of enough leaflets, give them to the Post Office and say, “Get on with it”.
Perhaps that is what should happen, but my point is that imposing a legislative responsibility on the Electoral Commission would put a burden on the Electoral Commission. That would be a tall order, although it would be a good contract in these days when there is competition. In the old days, a Member of Parliament got free postage from the Royal Mail. However, the Royal Mail now has competitors that will say, “No, we want to do that job”. Therefore, the Electoral Commission will have to ensure that it is even-handed.
My experience with the Electoral Commission was that, as Speaker, I had the duty of chairing the overseeing body known as the Speaker’s committee. One of our biggest worries—this is why I am concerned about bringing this into legislation—was that the commission wanted to bite off far more than it could chew. For example, although in the days that we have spent debating this Bill noble Lords have spoken with great passion about the fairness of the Boundary Commission’s appeals process, we previously had to stop Ministers handing over responsibility for the Boundary Commission to the Electoral Commission, as desired by its then chairman, Mr Younger. I had to say to Ministers, including the Secretary of State for Scotland, “Look, they cannot cope with that work”. The commission wanted to provide seminars to train electoral officers that would have involved using a training pack that was copyrighted by an outside organisation, so the cost to taxpayers would have been quite substantial. In other words, the Electoral Commission’s enthusiasm had to be curbed.
If the amendment is included in the legislation so that the Electoral Commission “must” do these things, the commission would have the responsibility not only for printing the leaflet and worrying about whether it might be subject to a legal challenge but for distributing the leaflet. Whether free post is given by the Royal Mail or any other organisation, the distributor will want to be paid for delivering the leaflets. Between now and 1 May, the Government would have to find out from the Electoral Commission what the bill would be. If the Government were not prepared to pay that bill, that would be another terrible strain on the Electoral Commission.
Given all its responsibilities—and all those that it has been curbed from taking on—I do not think the Electoral Commission could cope with publishing and distributing the leaflet. Although the noble Lord, Lord Lipsey, has pointed out that everyone gets a polling card, the point about that is that the returning officer—usually, the chief executive or legal officer of the local authority—has a responsibility for ensuring that the polling card is put through the door. Obviously, every Member of Parliament gets a different polling card that is distributed by different returning officers. The point is that the burden of delivering polling cards is spread across every local authority in the United Kingdom. If we consolidate the distribution of the leaflet so that it becomes the responsibility of one organisation, I do not think that the organisation will be able to cope.
The amendment of the noble Lord, Lord Rooker, would allow the Electoral Commission to provide information by other means. Instead of a leaflet, the famous laptops that young people use could provide the information, or it could be by means of local or national radio or television. That is my worry about the amendment.
I had not intended to speak on this group of amendments, but, having listened to the nature of this debate, I found myself wandering down memory lane again because the debate has brought back strong memories of the run-up to the devolution referendum in Scotland in 1979. There will not be any Hegel in my remarks, but there might be some of the Krankies.
I say to the noble Lord, Lord Strathclyde, that this should not be a partisan issue. Looking at the paragraph as currently drafted in the Bill, I think that there is a need for greater reflection on how the mechanics of the referendum campaign will be organised. There has been a lot of reference to the setting up of umbrella organisations. These umbrella organisations often do not take into account people who are experienced in the day-to-day work of informing people of choices in an election. I well remember that the 1979 referendum—like this one—involved an extremely rushed campaign. The noble Lord, Lord Graham of Edmonton, in his great wisdom and experience, made the important point that we are talking about a referendum that will be in three months time this week.
One of the huge problems that will be faced in the referendum is getting organisations together that will be in a position to advance the arguments both for and against the first-past-the–post and the additional vote system. It is very easy to get the great and the good to sit round a table and proselytise, but it is much more difficult to get people to go out and arrange for others to come out and go to the polling place. All the political parties, even the Liberal Democrats, will be divided. Some will take the position of Mr Clegg, who is in favour of the AV referendum; others will take the position that AV is a “miserable little compromise”. Therefore, there will not be the mechanisms on the ground to ensure that people are engaged in the referendum process.
The issue of producing a leaflet is very important. I am sorry to disagree with the former Speaker, the noble Lord, Lord Martin, but because of the complexity of this issue many people would like something on a bit of paper that they can reflect upon and read again to get it clear in their mind exactly what they are making a choice about. Yes, that will be expensive, but taking a wrong decision that had to be revisited later would be even more expensive.
There is also a case for the Government to convene a discussion among the major political parties on the logistics of the referendum. I well remember the former Scottish Office—it must have been under the Secretary of State, Bruce Millan—bringing together the general secretaries of all the political parties at the start of the campaign in 1979 to try to find some kind of modus operandi that would allow a campaign to work. In fact, my great ally in that campaign was the organiser of the Scottish Conservative and Unionist Party, because people who run elections know the nature of the difficulties that can be faced.
In summary, what is in the Bill at the moment is not sufficient. There is a need for greater thought about how the mechanics will operate. There is also a need to get impartial material into the hands of the electors, because my noble friend Lord Campbell-Savours is right to say that lies will be promulgated on both sides throughout this campaign. If we want to be certain of having an outcome to the referendum that everybody will accept, we have to do the groundwork.
I have seen the draft that the Electoral Commission has put together so far that explains the difference between first past the post and the alternative vote. I am not very good at reading instructions—I usually get rid of my washing machine whenever I have to change the programme—but, having vacillated on this issue and having believed in the need for a change to the electoral system, I have to tell my noble friend Lord Campbell-Savours that, having read the draft, I would now come down quite firmly in favour of first past the post. It is clear to me that the lack of certainty on how people can secure the outcome of their choice becomes glaringly obvious from the draft leaflet that the Electoral Commission has put together.
I have one final point. My noble friend Lord Campbell-Savours said that AV does not automatically create coalitions. No, it does not, but, although AV can create the climate for coalitions, it definitely creates odd bedfellows. That is because the nature of AV and the nature of practical politics is that people have to choose who their partners will be. At national level, that is usually very easy, but at constituency level you can end up with some very strange bedfellows. When that happens on the ballot paper, we could end up with some people in our Parliament whom we would not necessarily wish to see.
My Lords, I of course know that this Committee stage has to finish tomorrow and I am therefore reluctant to make a contribution. However, I am aware of the fact that this is the only opportunity we have had so far to discuss this hugely important issue of the kind of information that the voters will receive and how they will be able to obtain impartial information, if such a thing exists. This is against the background—I assume we all know and can agree on this—that there is absolutely no resonance whatsoever, anywhere in the United Kingdom, about the issues that will be raised in this referendum. The public are either not interested, which I think is almost certainly the case—
My noble friend is a very experienced parliamentarian, one who knows the grass roots and has campaigned on many occasions. Can he indicate to the Committee whether he believes that there will be door-to-door canvassing on this campaign? How many people will be sufficiently enthused by this issue to go out from door to door? How many public meetings are likely to be held on both sides? Does he see any prospect of people being so interested in this question that they will indeed do that sort of leg work, which is a feature of our elections?
No, I do not see any real prospect of that happening on any big scale at all and that should be a real concern to all of us. As someone who will be as active as I possibly can be in the no campaign, I am aware of the big disadvantage that the no campaign has, which is that everyone in the country at least knows something about first past the post but next to no one can answer serious questions about the mechanism of this particular form of the alternative vote system. That is why any impartial leaflet trying to tell the public about a system for which there is no evidence they know a great deal about must include the information as to where this is used. If it was not used anywhere in the world, presumably that is a valid factual piece of information to give to the electorate.
I am aware of the time, but I want to spell a point out and get a grievance off my shoulder. One must not bear a grudge, but I am still smarting under the advice that the Electoral Commission gave indirectly to the House, as it went to all Members of the House, when it was commenting on the various amendments as they were going through. The House may not remember Amendment 40B in my name but I do. It was a very simple amendment to allow the results of the referendum to be published constituency by constituency. It was a very simple proposal and I am sorry to say the House rejected it. I am not going to go into the merits of it but I simply want to make this point: in advance of the vote, the Electoral Commission, whose job it is under this legislation to provide information, made a mistake—believe me, the Electoral Commission can make mistakes —in respect of the advice it gave on my amendment.
As I said, my amendment was about publishing the constituency results. The commission said:
“We do not support this amendment … making such a significant change to the rules for the referendum this close to 5 May”.
In other words, it was assuming that the referendum had to be held on 5 May, which is a contentious piece of information to begin with. That is a date chosen by the Government, and the Electoral Commission is not necessarily obliged to give information which helps the Government to achieve this contentious advice as to when the date should be held. More seriously, and perhaps more factually, this piece of information came to the House after the amendment of my noble friend Lord Rooker, giving flexibility as to the date, had been approved by the House. So the referendum, according to the Bill as it then stood, did not have to take place on 5 May; in fact, it could take place any time between 5 May and some time in October, and that is the Bill as it stands.
I do not dispute for a minute the good intentions of the Electoral Commission but it was at the least a contentious piece of advice to Members taking part in that debate. If on a fairly straightforward, simple proposal like that it could be contentious then I would suggest that, for anything that tried to explain how various electoral systems worked and the merits thereof, it would be almost impossible to get a non-contentious document out to the voters.
Now that my noble friend has got this particular grievance off his chest, may I say he is right to raise the central importance of the information given to the public on this crucial vote that they are going to be faced with in a very short space of time? What role does he expect public service broadcasting organisations, notably the BBC, to play in providing the public with this information, bound as they are by considerations of fairness and impartiality and trusted as they are, particularly the BBC, by the great mass of the British public to be fair and impartial? What role does he think they will play? I would also be grateful if he could inform the House what role he thinks they should play.
I find it easier to answer the second question than the first because, although we all complain about the media from time to time, believability tests are regularly conducted about different forms of media outlets—in other words, what the public trust in terms of the information they receive from the various media outlets. Always near the bottom in believability tests, I fear, are party political broadcasts. Somewhere near the top are always programmes such as “Crimewatch”; people believe what they hear when someone in uniform tells them. That is the scale. The broadcast media always come out better than the print media. My short answer to my noble friend is that broadcasters have an enormous responsibility to provide the information because the public trust the information that they get from broadcasters more than that which they get from newspapers.
I have got my grievance off my chest and I hope I have made a point at the same time by saying that even the Electoral Commission does not always get things absolutely right. The Committee will be well aware that there are penalties when misleading information is given out by candidates during a normal general election. Very sadly—at least in my view—a court was able to remove a Member of Parliament quite recently. I think the only people who should be able to remove Members of Parliament are the electorate—rerun an election if you like. My point is simply this: there is a mechanism at the moment for penalties to be imposed if it is deemed that an election result is the result of misleading, inaccurate or false information being provided to the electorate. We are now discussing something far more important than an individual constituency election. We are discussing whether we should change the constitution of our country. Moreover, we are doing so without any requirement as to the number of people voting. My noble friend Lord Graham said that he once received just two letters in favour of something and one against. We could change the constitution on a very low poll with a very small majority.
I ask the Leader of the House: what happens if demonstrably false information has been given out during the campaign, which results in the country’s constitution being changed? As far as I can see, there is absolutely no recourse whatever if that happens. As we have already said, this is not an indicative referendum; this is a referendum that, if passed, will become law almost automatically. These are serious questions. I have spoken for much longer than I intended to and would rather leave the matter now.
I have just one question. Will my noble friend give thought to the fact that in the Welsh referendum campaign, for example, results were announced constituency by constituency? I remember it well because Carmarthen’s results came in last and that was the constituency I had campaigned in. If misleading information was put out in one area of the country, would that then lead to a request that the whole thing be done again; or would it relate only to individual constituencies where such misleading information had been put out?
That is a very good question from my noble friend, to which I do not know the answer. No doubt, given the great resources of the part of the Civil Service that deals with this Bill, the noble Lord, Lord Strathclyde, will be able to give an answer that satisfies my noble friend.
My Lords, we have quite properly had a very full debate on this important group of amendments. The Committee should be grateful to all those who have spoken. Our view from the Front Bench is generally supportive of the amendments in the group. I do not know whether Messrs Hegel, Heidegger and Marx would be flattered by the reference to them in the context of this Bill in the British House of Lords, but I am certain that they would be astonished to have been referred to at all.
These are important amendments. The noble Lord the Leader of the House will undoubtedly be familiar with the draft leaflet that the Electoral Commission has put out. Does he have any up-to-date information on whether the Electoral Commission feels that this is a satisfactory document? How much does it intend to change it? Maybe this is the nature of the beast, but how does the page—it is just one page—on the first past-the-post system compare to the pages on the alternative vote system? There are four pages on how this branch of the alternative vote system works. Is that deemed to be satisfactory by the Electoral Commission? I think that it only sets up the difficulties that many noble Lords from around the Committee have mentioned in their contributions. What I am really asking the noble Lord the Leader of the House to tell us is, what is the proposal as far as the Electoral Commission is concerned in terms of a final leaflet?
The Electoral Commission published on 30 September last year, Report of Our Views on the Proposed Referendum Question, to which I believe the Government responded in due course. It is worth pointing out a couple of the findings. On page 1, it states:
“Our research found the main difficulty people had in understanding the question was that they did not recognise or understand the voting systems it talks about – ‘First Past the Post’ and ‘Alternative Vote’. Accessibility and plain language specialists also commented that these were not terms that most people would be familiar with”.
Then on page 2, under “Summary of our findings”, it states:
“There were also some particular words and phrases used in the question that some people did not understand or struggled with: not everybody understood the term ‘First Past the Post’, or knew that it is the name of the system used now to elect MPs to the UK Parliament – even people who had voted before in this type of election … The term ‘Alternative Vote’ caused particular problems and was not understood, or was misunderstood, by nearly everybody taking part in our research”.
That may not come as a huge surprise to Members of the Committee, but it is a warning note. Indeed, the Committee’s discussions about the various types of alternative vote—which are the most satisfactory and which are not—pale in comparison to the fact that there is, at the moment, extremely limited understanding of what this type of alternative vote procedure actually means. Whatever view we take about the referendum taking place, there will not be very long to remedy that. So that is a warning and it is why I think that the amendments of the noble Lord, Lord Lipsey, are so important.
The Electoral Commission is, of course, an independent body created by Act of Parliament and has very strict rules, rightly, about the political activities of its staff. Nevertheless, there is no disguising the political significance and sensitivity of the decision on the electoral system which will be taken in this referendum and the role that the commission will play in it. As the Bill has demonstrated all too well, political interests are, of course, heavily engaged by this referendum. There is therefore a danger, as has been said on many sides, that in the context of this highly politicised environment, the information which the commission is due to circulate and which will impact significantly on the outcome of this referendum could become the subject of severe dispute. I want to remind the Committee, for a minute or two, of what can be described as an Irish cautionary tale.
I remind the House of what happened in Ireland during the referendum not that long ago on the Lisbon treaty in 2008. In advance of that referendum, a referendum commission was appointed under Irish law to promote awareness and understanding of the Lisbon treaty so as to inform the public about the issues at stake in the referendum. Indeed, apparently it is the practice in Ireland—some noble Lords will know this—that a commission is established for every referendum to ensure that the subject matter to be voted on is explained to the electorate.
The commission is also required to encourage the electorate to vote, which is another task that our own Electoral Commission has been asked to discharge in the forthcoming referendum. Like the subject matter involved in our proposed referendum, the Lisbon treaty was felt to raise issues of such complexity and technicality that it was quickly recognised that the information provided to the public by the independent commission could have a highly significant impact on the electorate’s decision. The subject matter that was distributed by the commission was therefore subject to intense scrutiny by the media and became the object of public argument between the two campaigns. This eventually spilt over into a wider spat about the commission’s independence, with claims and counterclaims being made about the connections between commission staff and individuals in the different campaigns, as well as allegations about a conflict of interest involving companies hired by the commission to help with legal work and communications advice which also worked for the Government. Many Members of the Committee will be reminded of that argument by what I have just said.
Of course, I am not suggesting that we would see the same problems repeated here, but we are saying that because of what is undoubtedly at the moment a low level of public knowledge about electoral systems, that inevitably means that the information provided by the Electoral Commission could have a major bearing on the outcome of the referendum, which in turn makes it highly likely that this information will be the focus of considerable attention, to put it mildly. Perhaps I have just set out the problem in other words, but the ways in which my noble friend Lord Lipsey and others who have spoken to amendments in this group have approached this problem need careful consideration by the Government in the little time that remains. We look forward to hearing what the noble Lord the Leader of the House has to say.
My Lords, it is good to have an opportunity to join in this debate. I am very grateful to the movers of the amendments. We have certainly started off with a most interesting debate on this group of amendments. The debate became slightly whimsical, but that is not the first time that that has happened in this Committee. I was glad to hear from my old friend the noble Lord, Lord Graham of Edmonton, for whom the House knows I have a great deal of affection. He was the last great Chief Whip in opposition who achieved so much with so little when the Labour Party was a relatively small part of this House. It is now the largest group in the House of Lords. The noble Lord said that there should be time for reflection—I assure him that we have done nothing but reflect for the past three months or so—and that we should consider some of these issues on Report, and we will, of course, do so.
It will come as no surprise to anybody who has been listening to these debates that the Government very much hope that the referendum will take place on 5 May and have planned for that. I have said that many times and the Government announced their intentions in July. I know that some noble Lords opposite would rather that it were not held on that date and that the Labour Party manifesto stated that it wanted a referendum on AV in October, as it considered that that was a better date, but that is not the view that the coalition Government have taken. In order to get the Bill back to another place so that the Electoral Commission can complete its work in time for a referendum on 5 May, the Bill will have to go back to another place on Monday 14 February. I do not suppose that that is a surprise to noble Lords opposite either as they have known about that date for a very long time.
I was very grateful to the noble Lord, Lord Pannick, who said that we were making heavy weather of the debate—he was right about that—and tried to knock a few heads together. I am also grateful to my noble friend Lord Newton for what he said about some of the common-sense aspects that came out of these amendments. It has been a full debate and I shall try to give it a full answer.
Paragraph 9 of Schedule 1 ensures that the Electoral Commission has a role in presenting voters with relevant information about the referendum, how to vote in it and factual information about the two voting systems. The Electoral Commission’s public testing of the referendum question found that the intelligibility of the question was increased when people had access to information on the different voting systems. Therefore, the commission has decided to issue factual information before the referendum. As it said in a recent briefing:
“We intend to send an information booklet about the referendum to each household in the UK which will include information not only about the voting systems but also about how to take part in the referendum, including how to register and how to vote”.
The Government take very seriously the recommendations of the Electoral Commission and we support the commission’s decision to provide a booklet to every household if it decides that this is necessary to ensure that the public are able to make a fully informed choice in the referendum. The Government welcome and support the commission’s approach to publishing the information booklet—in particular its public assurance that the final booklets will be available in alternative formats such as large print, easy read and Braille and the fact that the commission’s advertising and media campaigns will encourage people to look out for the booklet and point them to the website, which I urge all noble Lords to look at.
My Lords, that is an immensely good suggestion and of course that will be a decision for the Electoral Commission.
It is not clear from the current legislative framework under the Political Parties, Elections and Referendums Act 2000—specifically Section 13—whether the commission has the power to publish information about the voting systems for public awareness purposes in this particular referendum. Therefore the Government considered it best to make the position absolutely clear and accordingly, we tabled an amendment to insert paragraph 9(2) into Schedule 1 in Committee in the other place, which was passed and is now reflected in the Bill.
We do not see that it is necessary, or desirable, to mandate that the commission must issue information, as amendments tabled by the noble Lords, Lord Rooker and Lord Low, aim to do. Rather, it is the commission’s prerogative. The commission has indicated that it would like this power and that it clearly intends to exercise it but we do not think that the Bill should go further than that and oblige it to do so. Moreover, it is simply unnecessary to legally obligate the commission in this respect. The commission has already publicly indicated its intention to produce this information, and has published the draft text that will form the basis of public information leaflets on its website. I am glad that some noble Lords have seen it. It is important that those who take a real interest in these matters should look at it and send their comments to the Electoral Commission regarding this information before the leaflets are published.
The same point, concerning the appropriateness of imposing a legal mandate on the commission in this area, also applies to the amendments tabled by the noble Lord, Lord Lipsey. These would obligate the commission to provide a leaflet summarising the meaning of the question, together with the main arguments for and against first past the post and alternative vote. The amendments also specify that the leaflet must be impartial and unbiased, and distributed to every household in the UK, so far as possible.
The commission is clear that the leaflets will contain factual information; that this information will be impartial and unbiased—it would go against the commission's regulations to promote one particular outcome or be anything other than unbiased—and that it will go to every household in the UK. For this reason we do not think it appropriate that the information includes arguments for and against each voting system. The information will be factual, whereas the pros and cons are subjective. These arguments will naturally be for the campaigns. It is hard to see how the commission could be expected reasonably to summarise all of the arguments for and against in a way that is commonly accepted to be impartial and unbiased. This is an inherently partial subject, and the more the commission is drawn in to trying to describe the pros and cons, the more open it would become to allegations of partiality. It is important that the commission is neutral. Therefore, the arguments for and against should be left to the campaigns.
The Leader of the House is making exactly the point that I made, namely that it would be quite wrong and inappropriate for the commission to try to summarise the arguments for and against. Will he deal with the proposal that I made, with some support from my colleagues, that if there are two coherent campaigns, one on each side, the two organisations concerned should be invited to produce a leaflet that would be sent free to every household with the information pack from the Electoral Commission, as happened in 1975?
My Lords, the noble Lord is quite right, and therefore he and I are in agreement on this. As far as concerns the two campaigns, their material will not be part of the same leaflet pack. The campaigns, too, will get a free post, so that every voter will be left in no doubt about the information. Of course, we expect the media to play a full part in the campaign in the run-up to the referendum.
What about factual inaccuracies, for example the discussion about 50 per cent? Ministers at the Dispatch Box—including the noble Lord himself—have had to correct the record on the 50 per cent question. Does he think that the Electoral Commission might be in a position, in a neutral way, to set the record straight that it is not a requirement for a candidate to secure more than 50 per cent of the votes to be elected under AV?
My Lords, that is why I hope that the noble Lord will look at the website. If he does, he will find that the Electoral Commission has already made that point in its draft. He will be immensely reassured, as will the noble Lord, Lord Rooker.
I will respond to a couple of other issues raised by the amendments in this group. We very much agree with the intention of the noble Lord to ensure that leaflets are written in plain English. The noble Lord, Lord Rooker, my noble friend Lord Newton and others can be assured that the Electoral Commission is seeking the advice of language experts and working with the Plain English Campaign to produce its material. Nothing in the Bill prevents this, and the commission is doing it anyway, so I hope that the noble Lord will agree that that part of the amendment is unnecessary.
I am sorry to have dealt with these matters quite fully, but, as the noble Lord, Lord Bach, said, they are important issues. I hope that I have put the Committee's mind at rest that these matters have been thought about.
Before the noble Lord concludes his remarks, perhaps I might ask him to address the issue that I asked my noble friend Lord Grocott to address, namely the role that public service broadcasting organisations in particular should play in the debate. It is perfectly possible that they will think that this is an arcane and abstruse issue that deserves 10 minutes on “Newsnight”, and that will be that. Does he think that that would be an acceptable discharge of their public service obligations, or would he expect them to play a fuller role in fully, fairly and impartially examining all the issues on both sides of the debate?
My Lords, I am convinced that the broadcasters will see it as part of their remit to involve themselves in these debates. It is up to them to decide how they do so and is not at the direction of the Government, however desirable those of us in government might think that that would be.
My Lords, like the noble Lord, Lord Pannick, I am surprised that the debate has lasted so long. On the other hand, it has been quite interesting. There has been talk of contentious items. The first thing that I contend is that the largest group in this House is the coalition, not the Opposition. We could have a debate about that: it is the kind of thing that we might put on the leaflets. As someone said, it is symptomatic and sad that the only debates on the Bill in which these issues have been raised have been in this unelected House of Lords. They were not debated in the other place and certainly will not be, so we need not apologise for debating them here.
There is another surprising thing in this debate. We have agreed to finish Committee stage tomorrow, and when there is such an arrangement, it is normal for those who have restrained themselves from participating in the debate to pile into the debate. That is what used to happen in the other place. However, we have had only one contribution from the Liberal Democrats. They know that they can speak on this without affecting the outcome simply because we are going to finish tomorrow anyway, yet they still refuse to join in the debate. However, that is their problem, not mine.
It has been an interesting debate, and I wish to raise a couple of further points. The legislation talks about information to “persons”, not households. As far as I know, there are 44 million electors in 27 million households. The legislation says “persons”. People are going to vote, not households. If we want to talk about the bias, it might be considered bias in the proposed leaflet—I have the draft in my hand—for the status quo to apply in terms of which system will be dealt with first. The issue will be: which system will be described first in the leaflet? There could be a question of bias. I have no view about which way round they should be, but if I was really fanatical, I could nit-pick and consult lawyers about which one is going to be described first—leaving aside the fact that there are four pages to one system and one page to the other, which is another issue.
Furthermore, no one has mentioned the costs involved. I saw press reports at the weekend of the yes campaign being backed by about £6 million and the no campaign somewhat under £1 million. Obviously there is money to be spent on this. It is not impossible to do this. I have so far refrained from mentioning, as I did before, the fact that in New Zealand there was never any complaint, to the best of my knowledge, about the literature put out by its Electoral Commission for its two referendums when they changed the voting system. So it is perfectly possible to explain.
I am pleased about something that is contained in the Electoral Commission draft, which I have only just seen. It will not wash in terms of explanation, but it will stop the Deputy Prime Minister telling fibs any more. The draft says:
“Because voters don’t have to rank all of the candidates, an election can be won under the ‘alternative vote’ system with less than half the total votes cast”.
Let us have an end to that. I know that the Leader said that; he is not going to point out the errors of the Deputy Prime Minister, who started peddling this view. I could peddle the issue about how it ends tactical voting. It does not—it moves tactical voting to the second vote.
We have had an interesting debate. My noble friend talked about leaflets. It will be booklets, not leaflets. I do not see why the Royal Mail cannot do it. It can deliver to every household quite quickly. The difficulty is in the timing. Nothing can be printed until after Royal Assent. One assumes that something will be ready to go, if the Plain English Campaign has looked at it. However, it is going to go through letter boxes in the UK at exactly the same time as other election literature. Will it get the justice that it deserves? Clearly, we are embarking on a big project. As I have said, I have no view about the referendum on 5 May. I only offered a lifeboat if a lifeboat was needed. I do not campaign one way or the other. I simply think that, as I said last night, time is running short to get the message across in a way that will result in a meaningful vote.
Some practical problems may come up in terms of the mechanism that will be involved. One assumes that contracts have been looked at. You cannot just go to Royal Mail and say, “By the way, you know there are local elections in which there is no free post, but there are poll cards; and, by the way, we are having a referendum. Can you knock an extra one out for every household in the country?” Royal Mail will say, “No one has asked us about that. We have not got the capacity for that. We need more warning”. Has anybody done that? I presume we can ask that when we debate further amendments. However, in view of the need to make progress, I beg leave to withdraw the amendment.
Amendment 108 withdrawn.
Amendment 109 not moved.
109A: Schedule 1, page 20, line 3, at end insert—
“subject to the approval of the Speaker’s Committee on the Electoral Commission”
Following the previous debate, I can move this amendment from the opposition Front Bench comparatively shortly. We believe that it is absolutely appropriate that the Electoral Commission has the lead role in providing the public with educational materials in regard to the alternative vote referendum. That was the position adopted by the previous Labour Government in the Constitutional Reform and Governance Act, which originally contained clauses to provide for an AV referendum, supported by noble Lords from the Liberal Democrat Party but absolutely torpedoed and killed off by the Conservative Front Bench in the wash-up before the election.
We remain of the view that the Electoral Commission is best placed to provide the public with the neutral, factual background information that they will need to make an informed decision in the referendum. There is also no question that there is, as we have debated, a serious need for such background information. As we discussed a few minutes ago, noble Lords may well have read the report of the Electoral Commission on the intelligibility of the referendum question as then posed, which was published last September, following the original proposition put forward in the Bill. Following extensive public consultation, the commission found that the vast majority of UK citizens had only a slim grasp, if any grasp at all, of the choice which is being put to them in the AV referendum which, as my noble friend Lord Grocott quite rightly said in the previous debate—I hate to embarrass him—changes our constitution and may change it for a long time to come. Who knows? On the previous amendment, I quoted various short passages from that report and I shall not repeat them.
There is clearly a need for public education about the concepts and issues at stake in the referendum on electoral reform. Given the current low level of knowledge, it seems clear that the education people receive will shape the way in which they think and have a very great influence on how they then act. I shall not repeat my Irish cautionary tale about the trouble that a referendum commission, or in this case the Electoral Commission, can find itself in, but many such difficulties were outlined in the contributions made on the previous group of amendments. There is no doubt that it is a very difficult line for the Electoral Commission to follow without finding itself in very serious hot water from one side or the other or perhaps both.
The purpose of the amendment is to provide the Electoral Commission with some sort of cover which would insulate it against unwarranted accusations of showing favouritism, for example, to one argument over another. It would provide for a Speaker’s Committee on the Electoral Commission, a body which already exists, as noble Lords will know, and it would have a role in signing off materials which the commission intends, under its broad provisions, to disseminate about the AV referendum. That Speaker's Committee on the Electoral Commission would include, of course, senior Members of Parliament from all the main parties and would be chaired by the Speaker, who has no party affiliation.
That seems to us a sensible proposal which would strengthen the legitimacy of the referendum process and help to ensure that the Electoral Commission does not become embroiled unnecessarily or inadvertently in a political controversy which would tarnish the poll and tarnish the result of the referendum which, as I say, may or may not change the constitution of our country for good. It is a modest proposal but I hope one that may find some support in the Committee, particularly from the Minister. I beg to move.
I referred to this matter in my earlier comments and I am encouraged to make a further comment partly by the speech made by my noble friend Lord Davies of Stamford but also by that made by the noble Lord, Lord Pannick. The problem here is paragraph 9(2) of Schedule 1. Paragraph 9(1) is very clear. It does not put the Electoral Commission in the firing line at all. If the noble and learned Lord, Lord Wallace, who I assume will answer this debate, heard anything of the previous debate he will have heard anxiety expressed in all speeches about the dangers of putting the Electoral Commission in a position where it takes the blame for not getting a balanced view of the two systems. As I have said on a number of occasions, it is very difficult to write a pamphlet describing the two systems without, in some way, being biased. My noble friend Lord Rooker has already touched on this.
There seem to be two ways of dealing with this problem. One is the way put forward by my noble friend on the Front Bench, which is to allow a political committee, the Speaker’s Committee, to be the lightning conductor. That committee would oversee the work that was done and would sign it off and if there were any flak from it, it would not go straight to the Electoral Commission. That is one way of dealing with it.
Perhaps I may suggest another way which came to me when I heard my noble friend Lord Davies speak—I noticed that the noble Lord, Lord Strathclyde, gave a fairly positive response to it—and that is the idea of the two campaigning groups being able to send out a leaflet, at public charge, so that it would be done rather like an election address. Looking back to paragraph 9, sub-paragraph (2) is problematic because that is where the Electoral Commission is required to make judgments about the wording used to describe the system. If we took out sub-paragraph (2)—I do not expect the Minister to respond to this straightaway but he might want to think about it—and simply left in sub-paragraph (1), then the Government could, in this Bill—I suspect that it would not need to go into the Bill—allow for the two campaigning groups to produce the leaflet as described by my noble friend Lord Davies with some sympathetic support from the noble Lord, Lord Strathclyde. That could be sent round, either with the Electoral Commission’s pamphlet or separately—I should have thought it would go with it—and in that way you take the responsibility of describing the two systems other than in a very basic sense which is required in paragraph 9(1), and put the requirement in paragraph 9(2) onto the two campaigning organisations.
I hope I am making myself clear. It is slightly complicated, but I am arguing that the two campaigns will know what they want to say for and against the two systems. If they produce their own leaflets and they are circulated with the pamphlet put out by the Electoral Commission, which they will do under paragraph 9(1), then it leaves the Electoral Commission in the rather tighter position of simply saying that there is a referendum, informing people about it, informing them how to vote, but not getting into the nitty-gritty of the pros and cons or the description of how the two systems might work. That would be left to the two campaigning organisations. That way you would take the Electoral Commission out of the firing line. The alternative way is to do as my noble friend has suggested from the Front Bench and leave the Speaker’s Committee to oversee the leaflet. It seems to me that either of those systems would act as a lightning conductor for the Electoral Commission and not put it in the firing line for what will almost certainly be seen as in some way a biased leaflet. I hope I have made myself clear. Perhaps the Minister would like to think about that.
I thank the noble Lord, Lord Bach, for moving the amendment. This important amendment follows on from the previous debate and I welcome the contribution of the noble Lord, Lord Soley. As the noble Lord, Lord Bach, said in introducing his amendment, it is appreciated that the Electoral Commission should take the lead role in providing useful factual information. We believe it plays an important role in providing information to the public and there is a governance framework for the Electoral Commission, under the Political Parties, Elections and Referendums Act, which we believe has operated effectively for 10 years. It is also important to recall in the context of this amendment that latterly the Electoral Commission has had the benefit of advice and involvement of representatives from the political parties: the noble Lord, Lord Kennedy of Southwark, for the Labour Party, the noble Baroness, Lady Browning, for the Conservative Party and Mr David Howarth, the former Member of Parliament for Cambridge who represents the Liberal Democrats.
The Speaker’s Committee is an important part of that framework. It produces an annual report to Parliament on the commission's performance, but the nature of the role of the Speaker's Committee is different from that proposed in the amendment. The Speaker's Committee is currently not given any say in how the commission should exercise its powers. It is there to report on the performance of the commission rather than to have a say in the exercise of its powers.
The purpose of paragraph 9(2) of Schedule 1 is to provide legal clarity so that the Electoral Commission can issue information about both the first-past-the-post and the alternative vote systems which it identifies as being necessary to help public understanding of the referendum question. I hope that that goes some way to answering the point of the noble Lord, Lord Soley, which was whether we could delete paragraph 9(2) and leave it to the respective campaigns. Although the respective campaigns will have facility under the free post to put out their argument—no doubt a positive argument for why they wish to retain first past the post or to move to the alternative vote and an argument against the other system—that is clearly not a role that would be appropriate for the Electoral Commission.
Paragraph 9(2) provides a clear legal basis for the Electoral Commission, having identified a need for factual information, to provide it. In his response to the previous debate, the noble Lord, Lord Rooker, said that it could be accused of bias because first past the post was described before the alternative vote. In fairness, if one looks at the electoral question, the question for the referendum, which is part of the Bill, first past the post is mentioned there before the alternative vote, so it is probably not unreasonable that the Electoral Commission should reflect in its information the question which Parliament is debating and which appears in the Bill, published on advice from the Electoral Commission.
If a leaflet is to be produced by campaigning organisations, the noble and learned Lord will understand that, normally, when making an argument, you put the argument you want to make second. It is assumed that in a “on the one hand, on the other hand” argument, you put the argument that you favour second. Cannot that be got around in a leaflet by having one side of one page for and the other against?
The answer to that, as the noble Lord, Lord Rooker, pointed out, is that it takes a bit longer and more pages to describe the alternative vote than it does to describe the first-past-the-post system. Although that is an innovative and ingenious way to try to overcome the problem, I think that a practical issue is associated with it.
As my noble friend the Leader of the House said, the Electoral Commission has already published the proposed content of its information leaflets on its website. It is keen to have comments on the draft. If noble Lords wish to make representations about that information, they can of course send their comments to the Electoral Commission before the leaflets are published.
Can the Minister help me on one issue? He knows as well as I do that before elections, party election broadcasts replace party political broadcasts. Will there be referendum broadcasts for the yes and no campaigns? Will that be part of the arrangements for the referendum?
Off the top of my head—I think I know the answer but I cannot be certain—I think that the answer is yes. I know that parties cannot use their election broadcasts for the referendum campaign. I think that that was decided in a case prior to the Scottish referendum in 1979. I think that there will be broadcasts, but perhaps I can confirm that in the course of my remarks.
I am mindful that all public bodies need to be held properly accountable for what they do, but we need to strike a sensible balance. It seems to me that there are dangers in introducing a role for a parliamentary committee in approving the operational work of the commission, as is envisaged under the amendment, rather than monitoring and commenting on its performance, as is the case established under the PPERA. It must also be remembered that the Speaker's Committee, however august, comprises politicians. Irrespective of how carefully we might think that the committee would use its power—I have no reason to think that it would do other than that—perception can be important in these matters. There might be concern if the Electoral Commission—which, I think, everyone agrees, has a reputation for its impartiality—had in this crucial area to have its work vetted or approved by a body comprising politicians.
Furthermore, building in an extra procedural hurdle before the commission could issue the clarifying information to help voters could be difficult if confusion about the systems was allowed to take root and hares were allowed to run which could not be corrected promptly because of the need to refer. We must also bear in mind that the commission already issues a lot of useful guidance to voters, parties, candidates and electoral administrators about the working of our system. That has worked well. I am not aware of any significant concerns about it.
I confirm that my instinctive answer was right: there will be referendum broadcasts for the designated campaigns.
It is the commission's responsibility to decide how, and whether, to provide that information. As I said, I think it is widely accepted across the Committee that the commission is well established as a neutral, independent body. I am confident that it does not need the extra provision which the amendment would impose. There is a further opportunity for noble Lords to comment on the draft. I therefore ask the noble Lord to withdraw the amendment.
I thank the noble and learned Lord for his full answer and my noble friend Lord Soley for his contribution in support of my amendment. I am slightly disappointed by the noble and learned Lord’s response. As I said in opening, this is a modest proposal—and a practical one, I think. Without doubt, the Electoral Commission will come under a lot of pressure, to put it mildly, in the lead-up to and during the campaign for the referendum. No doubt, much of that criticism will be ill judged and unfair, but the Electoral Commission will have to face it.
This modest amendment is an attempt to give some cover, some protection to the Electoral Commission. The Speaker's Committee already exists. For the life of me, I cannot understand what are the dangers of extending its role to this issue. I understand that the Government do not want to adopt the amendment. I should like them to go away to think about it again because, as a practical measure to try to stop the difficulties that will undoubtedly arise in future, it seems to us to be sensible.
Of course I will withdraw the amendment today. We want to consider in more detail what the noble and learned Lord said, but I tell the Committee that we may well return to this issue at Report. I beg leave to withdraw the amendment.
Amendment 109A withdrawn.
Amendments 110 to 110ZB not moved.
110ZA: Schedule 1, page 20, line 6, at end insert “including the facilitation of co-operation between the officer, the Electoral Commission and the officers to whom sub-paragraph (3) applies”
My Lords, I move this amendment in a probing frame of mind. It refers to paragraph 10 of Schedule 1, which provides the nuts and bolts of the referendum arrangements. I sometimes think that they can be skimped in our deliberations. Paragraph 10 is headed, “Encouraging participation”. As I said earlier, I am sure that everybody wants that. Therefore, it is a very important part of the mechanics of the referendum.
My concern is that in paragraph 10, five individuals and tiers of officer are referred to: the Electoral Commission, the chief counting officer, regional counting officers, counting officers and registration officers. The last four—the chief counting officer and everybody down to registration officers—are under a duty and must,
“take whatever steps the officer thinks appropriate to encourage participation in the referendum”.
My concern, especially in view of the tight time scale in which the referendum is likely to be conducted, is that there will be a lack of co-ordination between all these different officers about what they do. You could get a right mess with each of them carrying out their duty to encourage participation, some in this way, some in that, some here, some there, often overlapping and often leaving gaps of encouragement. I therefore thought it fit to propose this amendment which will cast upon the chief counting officer a duty to, in effect, facilitate co-operation between all those bodies, not forgetting that in the same paragraph 10, all four sets of officers,
“must have regard to any guidance issued by the Electoral Commission”.
So it has its oar in as well.
It is as simple as that. We surely need somebody who has a primary role to facilitate co-operation between all these various people and organisations. Lastly, I point out that under the Political Parties, Elections and Referendums Act 2000, the chief counting officer is chair of the Electoral Commission. That is all I need to say. I beg to move.
My Lords, I am not entirely sure why my Amendment 110ZB is grouped with the amendment tabled by the noble Lord, Lord Phillips, but it gives me a particular pleasure to follow him in the debate. We have heard only too little from his Benches in the course of this debate, and therefore I wish him well in his speech. I should perhaps add that he should mind how he goes on the way home. A vow of omerta has bound the Lib Dems together over this Bill, and he has, I am sure inadvertently, broken it by intervening for a whole two minutes this evening. So mind how you go.
My Amendment 110ZB is not terribly well related to Amendment 110ZA, but is about a quite different matter. It harks back to the stain that still hangs over our democracy from the May general election. Memories in politics are, alas, short, but not in this House, of course. Therefore, I hardly need remind noble Lords of what happened. In a number of constituencies—16 in all—people turned up at the polling station before the 10 o’clock deadline wishing to cast a vote in those constituencies. They were not allowed to vote. According to the Electoral Commission’s 20 May interim report on the matter, 1,200 voters were excluded from voting as a result of that cock-up.
For each of the 1,200 voters, the ban was absolute. It may not be a large percentage of the national total, but for a few days, our papers, no doubt exaggerating a little bit, were comparing us to a third world democracy. We could not even organise a vote, and when you see the way voters queue up in South Africa for hours and hours under a hot sun to exercise their right, and you find that in our own country people who have turned up on time are denied it, it leads to a shiver of shame going down one’s spine. The Electoral Commission’s interim report blamed poor planning, unsuitable buildings, contingency arrangements that were not triggered in time or proved ineffective and, incidentally, restrictive legislation that stopped those queuing getting ballot papers, even though they were in the polling station on time.
Planning for the referendum is in one sense at least perhaps more difficult than planning for a general election. Yes, we should all love to see a turnout for the referendum at least as great as that in the general election, but I do not think that many psephological experts think that is terribly likely. It really is terribly difficult to predict what turnout will be. You can imagine that the campaign starts with a poll showing a great gap between the various sides, and therefore fewer and fewer people plan to vote because they do not think their vote will make a difference. As it gets closer to polling day, it may be that polls start to narrow, and a whole load of people decide that they will after all go to the polls. By then, electoral officers will have made their dispositions and decided how many staff to have, how many polling stations and so on. In this case, the Leader of the House’s technique for deciding what the turnout will be—the same technique that he used for the number of seats—by choosing a nice round number out of the air is not that much worse than any other technique. There is a danger that the accommodation will not be sufficient for the number of people who turn out to vote on the day.
The Library tells me that we are still awaiting the final report from the Electoral Commission on last May’s debacle, but bits of it have leaked out. The Government’s response has left a nasty sniff in the air. The Times reported, even before the report came out on 11 November, that Nick Clegg, the Deputy Prime Minister, had turned down the proposal in the commission’s interim report for a change in the legislation so that those who turn up before 10 o’clock can vote, even if they have not cast their vote by 10 o’clock. He said that the answer to poor organisation was not to reach for the statute book. Of course it is not, but it seems sensible to have two barrels to your shotgun: to try to deal with the poor organisation and to change the legislation that inadvertently caused this problem. I am therefore a little sorry and a little surprised that this legislation—absent the amendment I am now proposing—does not seem to do anything about that shortcoming.
Whenever I propose an amendment of this kind, somebody stands up and asks whether I have consulted the Electoral Commission about it, and I always retort no, because we are in Committee and it is not the duty of a Member of this House to consult the Electoral Commission on every proposal he puts forward at this stage in a Bill. I am, and should be, slightly surprised that the Government have not consulted it. I am disappointed that I have not seen, although it may exist, any kind of response to such a consultation. This was a serious problem. It is not a joke. If it is repeated, it will cast permanent doubt on our electoral arrangements, and it is therefore absolutely essential that we make sure that there will be no repetition of this on 5 May.
I should have said earlier that there is one other reason why there could be a repetition. If the referendum goes ahead on 5 May, and it remains to be seen whether that will be possible, it will be quite a complicated election. At the polling station, they will be dishing out one set of papers for the election of Governments in Scotland and Wales and another set of papers for the referendum, and people will be coming up saying “Please sir, what do I do with that?”; “I don’t know that”; “I didn’t know I was going to get that”; and all that sort of thing. It would be quite easy to imagine circumstances in which the staff at the polling stations became overwhelmed by the sheer volume of queries.
I shall not try to have a vote on this tonight. I give way to the noble Lord.
The noble Lord might be reassured that I am not going to ask him the question that he feared about whether he had consulted the Electoral Commission on this issue. Rather, does he not think, in view of the potential problems he was just outlining, that his amendment could add to those problems? His amendment would apply to the issue of ballot papers for the referendum only. The effect of his amendment will be that different laws would apply for the issue of ballot papers for the referendum from those that would apply for the issue of ballot papers for the Scottish Parliament, Welsh Assembly and local elections. That would further add to the confusion. For those of us who agree that there is a problem with this matter and that it might be better dealt with by legislation, the legislation should be comprehensive for all elections and referendums and not just the referendum on 5 May.
My Lords, there is a great deal in what the noble Lord says. The trouble is that we have got before us the parliamentary voting Bill and I cannot change the whole of electoral law in a clause within it. If the noble Lord can prevail on Ministers to change the electoral law more generally as soon as possible, then that would be great. I would rather that on 5 May people were able to vote in the referendum, even if a cock-up occurred that stopped them voting in the local elections, than that they went all the way to the polling station and could not cast a ballot on anything. That would be much worse. While the anomaly that the noble Lord points to does exist, I think it preferable to the disaster that could occur if my amendment, or something like it, is not adopted.
As I say, I am not going to force a vote, partly because the Government may know more about the final report of the Electoral Commission than I do. I hope, however, that the Minister will be very responsive to the points made in this House and will see some merit in what I am saying. I hope I can look forward to him coming forward with proposals to deal with the matter on Report. If he does not—and I am not predicting this—the danger is that on 5 May we will get less a verdict on the electoral system and more some very cross voters indeed. That would be something that nobody in this House would wish to see.
My Lords, first, I support the principle behind the amendment that the noble Lord, Lord Phillips of Sudbury, has moved. The arrangements as set out in the schedule are somewhat ambiguous. His amendment is one way, at least, of clarifying that. There may be other, better ways, for all I know, but certainly these arrangements need to be clarified. I strongly support the view behind the amendment of the noble Lord, Lord Lipsey—that the situation in the last election, where people who came and were there before 10 pm could not, because of the law, be given ballot papers, was absolutely disgraceful. Whatever the reason, on the night the lady from the Electoral Commission who spoke did not appear to me to have grasped exactly what the situation was. She said that it had given clear instructions that the ballot papers were not to be handed out after 10 pm. It suggests to me—and I do not know what the right answer to it is—that some flexibility is required to deal with special circumstances. The people who are running the different polling stations may not necessarily be the top brass of the arrangements, but some kind of discretion must be given, because that kind of thing can happen. I do not expect for a minute that anybody realised exactly what was happening until it was really too late, and then they had this terrific sledgehammer of “You cannot issue a ballot paper after 10 pm”; witness what the Electoral Commission had said. In a sense it made the matter worse. I do not say that the people in the polling booth could have given them out after 10 pm, although I think if I was in a polling booth and in charge as a clerk I would have had a shot at that.
It is important that this matter should be sorted out one way or another. If the Government do not think that the Electoral Commission solution is the best, then let us have one. We need a solution. I agree, of course, that it needs to be a solution that applies to all elections—not just the referendum—although, unfortunately, I do not think that that could be done in this Bill. We are trying to do enough already. We cannot sort the whole thing out, but it is certainly important to sort it out. A very short Bill that would not take the time that this one has taken could go through both Houses and sort this out in good time for 5 May.
My Lords, I follow the noble and learned Lord, Lord Mackay, when he says that he agrees with the intention of both these amendments. It may well be that the wording can be improved—and it probably can—but there will be general approval for the intention. I also begin by welcoming the contribution of the noble Lord, Lord Phillips, and indeed that of the noble Lord, Lord Rennard. Someone mentioned the vow of omerta. When we had a Liberal Democrat intervention in an area of policy which in many ways they have taken as their own, I was reminded rather more of the brave Horatius at the bridge:
“And even the ranks of Tuscany
Could scarce forbear to cheer”.
The noble Lord, Lord Phillips, mentioned the question of facilitation. This is clearly a possible problem because there will be a number of right hands and a number of left hands. It is important that this be a key role—even if the actual wording is not wholly appropriate.
I was puzzled by another matter in this same section. In paragraph 10(1), we are told that:
“The Chief Counting Officer must take whatever steps the officer thinks appropriate”.
At the end, in paragraph 10(5), we are told that:
“The Minister may reimburse any expenditure incurred by an officer for the purposes of sub-paragraph (1) or (2)”
On the face of it, this gives an unlimited expenditure for the worthy objects of this paragraph and goes against all the normal government policies of being frightened and hesitant about open-ended commitments. It is wholly unlimited. One’s mind boggles at what, in following up this worthy objective, a very zealous officer may wish to do. So I simply commend to the Government—
That is one way of seeking to limit the zeal of any particular officer. It may well be that there should be written into the clause some test of reasonableness or otherwise, but we have to have some limit.
The final comment I would like to make on the amendment is on the point made by my noble friend Lord Lipsey, which was supported by the noble and learned Lord, Lord Mackay of Clashfern. I had the privilege of being an observer, or monitor, at both the South African election in 1994 and the first free election in Namibia in 1989. What amazed me at the time was that many people who had not had the opportunity before—those who were non-white—had such enthusiasm to get to the ballot box. I recall seeing young men carrying their aged mothers on their shoulders to get to that ballot box. I recall the long queues of people waiting to vote. All of those, in fact, who were in the tent at the relevant time, were allowed to vote. For any democrat it was a wonderfully emotional and uplifting moment.
As the noble and learned Lord, Lord Mackay, has just said, it was very different when we saw the people who had been excluded from voting at the time of the last election. As a democrat, I was extremely happy to see the display of real anger on the part of those who were excluded. We wait with interest to see how the Electoral Commission will respond, but surely it is not beyond the wit of man, or woman either, to give out cards to those waiting in the queue at 10 pm to enable those who have made the effort to vote on time to do so. Indeed, everything must be done to encourage people to vote. Someone who is turned away at the last moment because there is a queue may, in the future, join the ranks of those who do not vote. Let us look very carefully at this in order to encourage democracy.
My Lords, as someone who takes an interest in the field of IT and new technologies, I have to say that the idea that we still vote by putting a cross on a piece of paper, having had to travel somewhere to actually put that paper into a box, appals me. I would not dream of booking a holiday or anything else in any way other than online through my computer and paying with a bank card. There is some security risk, maybe, but not very much, yet we still have this absurd system for voting. But, of course, almost the first thing this Government did was to abolish the one way we could have had electronic voting by getting rid of the rather small system of ID cards that we were introducing. If we had ID cards, we would not have any of this bother.
This real point is this. My noble friend is right at one level to say that in Scotland we are going to have two ballot papers presented to us—but we are not because we are going to have three of them. There will be one using the first past the post system to elect the Member for the constituency, and a second paper giving a list of parties to elect. That, by the way, raises the point made earlier by my noble friend Lord Rooker about where you stand on the ballot paper. In my view, it is almost certain that Alex Salmond is the First Minister of Scotland because he made sure, when using the list system, that he was listed as “Alex Salmond for First Minister” rather than “SNP”. He was at the top of the list and probably got just about enough votes to make sure he won the election.
We are now to have the AV paper to contend with as well, and some people will find it difficult. The referendum is very important, but a problem that may arise is that some people in Scotland will decide that the Scottish elections are considerably more important than the referendum for AV. After all, the Scottish Parliament deals with the education system, housing and all the social issues that affect people’s lives. They may say, “I can’t be bothered with the referendum paper. I will deal with the Scottish Parliament ones”. If the turnout for the AV referendum is smaller than it is for the Scottish Parliament, that will begin to cast doubts on the referendum itself.
Does my noble friend recognise that the position is even more complicated, as I explained in a debate we had before Christmas? There are also two franchises, so although the vast majority of people will get three ballot papers, some will be entitled to only one and others to two. The returning officer has to keep two registers, so it is going to be very complicated, and the likelihood of queues to vote is even greater.
My noble friend makes a good point because the chance of a reduced turnout is even further increased by that. Moreover, if we have to have this sort of electoral system and way of voting, maybe there is a case for switching the polling day from a Thursday to a Sunday because at least that would give people the whole day to cast their vote, whereas those who are at work on a Thursday have to do it after they get home.
I turn to the amendment tabled by the noble Lord, Lord Phillips. He is quite right to say that there should be somebody to do this. But whoever is in charge of the election, what he will have to decide—certainly in Scotland—is the order for counting the different sets of votes. I assume that the same people will count both the referendum and the Scottish parliamentary votes. There is already criticism in Scotland that, because the referendum for AV is being held on the same day, the announcement of the results of the Scottish parliamentary election may be put off for several days because they will want to announce both results at the same time. Whoever is in charge of the election will have to make the decision about what to count first. The various ballot papers will have to be sorted out, as my noble friend said, or will it be decided that the Scottish parliamentary election votes will be counted and those results announced first?
I hesitate to ask the noble Lord to give way again, but I think I can help him on that. Paragraph 5 of Schedule 1 gives the chief counting officer the power to direct regional counting officers and so on, and gives regional counting officers the power to direct counting officers within their region about the discharge of their functions. That will probably include directions about the sort of issues the noble Lord has raised. But of course that does not go across to paragraph 10, which is all about encouraging participation.
I gather that some returning officers in Scotland have already begun to complain that they do not know which votes they will have to count first, and that this is causing some confusion in their ranks. Maybe it is for the Government or the Electoral Commission to take a decision on this. However, I think that there will be some anger in Scotland if the results for who is to form the next Government in Scotland and who is to be the next First Minister in Scotland are delayed by the result of the decision on the AV referendum, if that is done first and the other results are delayed. For some of us, the idea of Alex Salmond being First Minister for even one more hour let alone one, two or three more days is more than we want, but the fact is that I would accept that decision if it is made. The power in the Bill may allow the officer to make that decision, but it would be a very important decision for him to make.
My Lords, in our view these are two excellent amendments, although it is rather surprising that they have been put together in the same group. What links them is their excellence, and I hope that the Minister will be encouraging to both noble Lords who tabled them. I do not fear for the health of the noble Lord, Lord Phillips, on his way home. We all know him as a brave and independent-minded Peer who has already shown, in the course of the eight or nine months of the coalition’s existence—it seems a long time already—that he can act independently. Looking at him from where I stand now, he seems to be the same man he was before he voted a few months ago against the coalition on an important amendment on a different issue, so good luck to him in his amendment. Of course, if he had been concerned, he need not be any longer because he has the protection and support of the noble and learned Lord, Lord Mackay of Clashfern, and there cannot be any better protection and support than that around the House.
The noble Lord, Lord Phillips, pointed out the ambiguity and ambivalence of paragraph 10 and the need for it to be simplified. For those on the Front Bench on this side, that is clear, and I think it is the only point I need to make about his amendment. We hope that his noble and learned friend Lord Wallace of Tankerness will take note.
My noble friend Lord Lipsey’s amendment also seems to hit the mark for us. The noble and learned Lord, Lord Mackay of Clashfern, was right to say that what happened at the end of the last general election night—thankfully in a comparatively small number of venues, although even one was one too many—was absolutely disgraceful. Indeed, if it had happened in any other country, whether it was a sophisticated democracy or a new democracy, I venture to think that it would have been reported in the British media as being proof that that country had not really grown up democratically and lacked certain vital factors in elections. We must make sure that it does not happen again, and indeed I think that that is what my noble friend is suggesting in his amendment.
The noble Lord, Lord Rennard, was quite right to say that this would only affect the referendum, but it needs to affect all elections. However, the noble Lord, Lord Rennard, is perhaps best placed of anybody in the House to use his influence to make sure that government views can be changed so that this can become general practice rather than just for the referendum.
I have nothing else to say from the Front Bench except that we hope very much that the Minister will be sympathetic to these two amendments, both of which will add to the virtue of the Bill.
My Lords, in addressing the amendment tabled by my noble friend Lord Phillips, I can assure him that he need not be concerned about proposing it.
Amendment 110ZA would impose a duty on the chief counting officer to facilitate co-operation between the officer, the Electoral Commission, the regional counting officers, counting officers and registration officers. In common with other noble Lords who have spoken in the debate, the Government agree with the intention of the amendment, which is to ensure that there is a strong relationship and good communication among those involved in running the referendum. However, we do not believe the amendment is necessary because there is nothing in the Bill which would inhibit this kind of activity from taking place.
Paragraph 10(1) of Schedule 1 states:
“The Chief Counting Officer must take whatever steps the officer thinks appropriate to encourage participation in the referendum”.
That, of course, includes precisely the kind of co-operation suggested in the amendment. Moreover, I can assure my noble friend and the Committee that this kind of co-operation is already happening in practice. The chief counting officer has established a working group, which includes regional counting officers, to co-ordinate activity ahead of the planned polls; and the commission’s plans for public awareness have been shared with this group, as well as with counting officers and electoral registration officers. We are assured that material will be developed by the Electoral Commission for use by electoral administrators to support their public awareness work and to ensure appropriate co-ordination with its own activities.
On a slightly more technical point, the amendment does not sit well with the current wording and spirit of paragraph 10 of Schedule 1, where the onus is on the chief counting officer being responsible for deciding what steps she thinks are appropriate to encourage participation. It should be noted that when undertaking this responsibility the chief counting officer can also use her power of direction under paragraph 5(5) of the schedule to require regional counting officers and counting officers to take a particular course of action to encourage participation. In contrast, the amendment would mandate the chief counting officer to undertake specific steps, which is not the intention of this provision.
In addition, one effect of requiring co-operation among certain named bodies is that such a requirement could raise a question about whether it was also permissible for the chief counting officer to consult other bodies that are not mentioned there. That problem does not arise in the original drafting.
I understand the sentiments and the intention underlying my noble friend’s amendment.
Will the Minister respond to the question of my noble friend Lord Anderson about the conflict between the requirement on the chief counting officer to encourage participation as he thinks fit and the fact that the Minister may not necessarily reimburse the local authority? If a registration officer believed that it was appropriate to encourage participation by, let us say, running a rapid registration campaign prior to the referendum and got on with it, and then it was decided that because the money was not available he could not proceed, would not that have legal implications for the officer’s failure to act?
My Lords, I think the noble Lord is asking whether, if a person is frustrated in his activities—I take a technical approach to this—the post hoc situation would be reimbursement. I take the point and do not wish to diminish it, but perhaps I could have some time to reflect on what he is saying. It is agreed on all sides of the Committee that there should be encouragement, which we do not wish to have cut off.
A local authority registration officer might write a report to the democratic services committee or a department in the local authority saying, “I wish to proceed on this basis because I believe it is an appropriate way for me to encourage participation”, and the local authority might say, “We are sorry but the money is not available and the Government are not going to reimburse us in the event the expenditure takes place”. Surely that must have legal implications for the position of the officer concerned.
I do not think that is how it would work. Reasonable expenditure will be reimbursed by the Government. If the expenditure was unreasonable and extravagant and went beyond anything that could be considered reasonable, there should not be an obligation on the Government to reimburse. I can reassure the noble Lord that reasonable expenditure for the purposes set out in paragraph 10(1) and 10(2) would be reimbursed. The noble Lord has put forward a serious hypothetical situation, but anyone would accept that running a registration campaign was a reasonable thing to do. If someone went about it in an extravagant way—which I cannot begin to think of at the moment—that would be deemed unreasonable by most sensible people and it would not be reasonable that taxpayers’ money should reimburse it. However, with a straightforward, reasonable campaign, the Government would reimburse.
On the points made by the noble Lord, Lord Maxton, the Scottish parliamentary elections will be counted first, ahead of the referendum. The selection of the First Minister does not normally follow the election anyway. I recall that in 2003 we did not get down to negotiations about establishing a coalition until the Monday after the election. Nevertheless, the point remains that the Scottish election count will take precedence over the referendum count.
There is a link between this amendment and the amendment of the noble Lord, Lord Lipsey, which relates to the role of the chief counting officer and the powers available to her. Sentiments have been expressed in the debate, as on other occasions, that democratic people were profoundly perturbed by the scenes they saw on the night of the last general election when people were not allowed to exercise their democratic rights. Paragraph 10(1) of the schedule states:
“The Chief Counting Officer must take whatever steps the officer considers appropriate to encourage participation in the referendum”.
The amendment of the noble Lord, Lord Lipsey, would provide that:
“These steps shall include measures to ensure that all those wishing to vote and arriving at the polling station within the appointed hours are able to do so”.
Clearly, the amendment is intended to address the scenes and situations we experienced in May last year.
I can assure the Committee that we take very seriously the problems that arose at certain polling stations. The Government have been considering the Electoral Commission’s report on the issue and, in particular, the recommendation that the law be changed to allow people who have not been issued with a ballot paper but are in the queues at 10 pm to vote. We are not convinced or satisfied that the amendment would enable the chief counting officer to direct that ballot papers are issued after 10 pm—if, indeed, that is the intention of the amendment. As the noble Lord indicated in his speech when he spoke to the amendment, the Electoral Commission report noted that that was not possible because it would not comply with the law. Clearly, the chief counting officer cannot issue a direction that contravenes the existing law. As the noble and learned Lord, Lord Mackay of Clashfern, indicated, that is possibly not something that could be done in the context of this legislation for a referendum alone.
I will try to deal with the other point in a bit more detail. It is important to note that in most cases where the problems occurred in May last year, the Electoral Commission has found that the common factor was inadequate planning processes and contingency arrangements—or, more to the point, that such arrangements were not in place.
The noble Lord, Lord Lipsey, quoted my right honourable friend the Deputy Prime Minister. He quoted him accurately, but perhaps I should just quote a little more of what he said. At Question Time in the other place on 10 November, the Deputy Prime Minister said:
“I happen to think that, in this instance, simply passing a law will not deal with the problem, which was a lack of resources and poor organisation by the returning officer, who acknowledged as much”
—he was specifically talking about Sheffield, where his own constituency is—
“… That is what we need to address; we should not always simply reach for the statute book”.—[Official Report, Commons, 10/11/10; col. 285.]
Officials have met the Electoral Commission, and indeed electoral administrators, to discuss the issue of managing queues at polling stations. It is clear that there are divergent views on the effectiveness of any legislative change, and a significant number of administrators are not in favour of it. Again, that is a reflection of the fact that the problems in that particular case in May last year were because of planning failures and the lack of effective contingency planning.
Given the divergence of views that exist on the specific recommendation of the Electoral Commission and given that there is the general consensus that the problems largely arose from poor planning, we believe there is a need for significant additional discussion before any change to legislation should be proposed, if indeed that is eventually deemed appropriate. There needs to be buy-in from all those who would be involved in administering elections.
Under the Bill, we consider that the chief counting officer already has the necessary powers to provide appropriate guidance, training and support to the regional counting officers, as well as to counting officers themselves, to help address the issues that arose in May 2010. I am aware that some of the contingency arrangements have already changed the ratio of polling clerks to the number of voters at each polling place. We think there is certainly a need for more discussion as to all the potential consequences of any legislative amendment before a change to the principles underlying the existing electoral rules is considered. In these circumstances there is some benefit to having the certainty of the present rules, admittedly with the back-up role that the chief counting officer has the authority to play in giving the necessary guidance, training and support.
Perhaps two things are getting confused here. My amendment would not deal with the strict legislative problem that the Electoral Commission originally identified. That is still under discussion and I agree this is not the appropriate time to put that right. However, my amendment would convey to returning officers the extreme importance that Parliament attaches to tackling these problems. Yes, it would be a declaratory piece of legislation, but that is not without force in this world. The noble and learned Lord might like to reflect on the point that, if he rejects this proposal, it will seem as if the Government are not really taking on board the depth and importance of the problems that arose and the reactions of electors to them. I do not think that is good for the Government and I do not think it is good for government, as a matter of fact.
I cannot accept the second part of what the noble Lord has said, because the Government accept that what happened in May last year was serious. There is no doubt about that. Anyone reading this debate would realise that the view on all sides of the Committee is that the situation was serious. I hope to reassure the noble Lord—who accepts that his amendment would not change the legislative basis for that—that there is a distinction to be made, given that it was accepted that in the cases last year the common factor was one of poor planning. In this case, there will be a chief counting officer, who will have a responsibility and already be aware—not least because of the dual role with the Electoral Commission—about the importance of this issue. I am sure the chief counting officer will be well aware of the sentiments expressed and the important and serious points made in this debate. If the noble Lord’s aim was to get a message across, his amendment has provided a very helpful forum and opportunity to get that message across. She has the powers, we believe, to provide the appropriate guidance, the appropriate training and the appropriate support so that these issues will be addressed and the kind of situation that we saw in May 2010 will not arise again.
Against that background, I ask the noble Lords not to press their amendments.
My Lords, I really did not want to make heavy weather of this amendment, but I have to say that my noble friend the Minister’s response gave a series of legal interpretations with which I have to disagree. It is unfortunate that I have to disagree, but I do, even though I know that he is advised in these matters and one normally accepts such advice to be beyond question.
The first argument advanced by the Minister was that paragraph 10(1) says:
“The Chief Counting Officer must take whatever steps the officer thinks appropriate to encourage participation”.
He said that such a provision allows the chief counting officer to direct the other officers—regional counting officers and so on—as to what to do and how to do it. I think that is simply wrong. There is no implication of a power of direction in that sub-paragraph. His second argument—
I think that I noted that, when undertaking the responsibility, the chief counting officer can use her power of direction under paragraph 5(5) of Schedule 1 to require action. I think that I emphasised the importance of co-operation—which is both permissible and happening in practice—but I referred to paragraph 5(5) in relation to powers of direction.
I was coming on to paragraph 5(5), but I am afraid that my first point stands. If the Minister looks back at Hansard, he will see that I am right.
Paragraph 5(5) of Schedule 1 explicitly gives the chief counting officer powers to direct counting officers in the discharge of their functions. I thought long and hard about this and consulted—if he will not mind my saying so—with the noble and learned Lord, Lord Mackay of Clashfern, who knows a thing or two about interpretation. We agreed that the reference there to the power to direct is with regard to the conduct of a referendum. If the Minister looks back on paragraph 5, he will see that it is about the conduct of the poll, the printing of ballot papers, the issue and receipt of postal ballot papers, verification and counting of votes cast—that is, solely and exclusively a power of direction on technical and practical matters.
Lastly, the Minister said that he thought that the situation would be endangered by my amendment because he said that, if there was a right of “knocking heads together” among these five categories of officer, it might involve consultation with outside bodies. However, there is no mandate whatever for that in my amendment. If the Minister says that I have got it wrong—
I apologise if I did not express the matter clearly. What I said was that one effect of requiring co-operation among certain named bodies is that it might raise a question about whether it is also permissible to consult other bodies that are not mentioned there. In other words, if you are mandated to consult A, B, C and D, it may raise a question if you wish actually to consult F.
There is no reference in my amendment to consultation. This is a power of facilitation and of co-operation among the five sets of officers mentioned. There is no question of consultation, implied or otherwise. This is solely and exclusively among these five sets of people.
I am not a happy mover, I might say, and I would be grateful before I withdraw the amendment if the Minister would agree that this needs further consultation between us. If indeed his arguments prove to be fallacious—he started by sympathising with the sentiment of my amendment—at least there will be the consideration that a further amendment could be brought back at the next stage.
Amendment 110ZA withdrawn.
Amendment 110ZB not moved.
110A: Schedule 1, page 20, line 13, leave out “appointed under section 8 of the 1983 Act”
Amendment 110A agreed.
110B: Schedule 1, page 24, line 26, at end insert—
“( ) The Chief Counting Officer is entitled to recover expenses incurred by that officer for or in connection with the referendum if—
(a) the expenses are of a kind that would otherwise have been incurred by counting officers or Regional Counting Officers, and(b) the Chief Counting Officer considered that it would be more economical for the expenses to be incurred by that officer instead.”
My Lords, this group contains Amendments 110B, 110C, 110C, 110D and 110E. The amendment would give the chief counting officer, who is chair of the Electoral Commission, the power to incur expenses for the effective conduct of the referendum and in certain limited circumstances, make payments in respect of those expenses out of moneys to be provided from the Consolidated Fund. I can assure the Committee that the chief counting officer will be able to spend conduct moneys only where doing so provides a clear financial benefit. The Royal Mail, for example, has indicated that it may be able to provide a cheaper service for the sweeps of mail centres—a service that ensures that any votes still in the mail centres towards the end of polling day are identified, extracted and provided to returning and counting officers before the close of poll that evening—if it can contract for this on a national basis with one individual rather than having to negotiate and contract with more than 350 officers who will be conducting the poll at local level.
The amendment would help to make the administration of the referendum easier for the chief counting officer and for counting officers, and provides an opportunity for savings to be made on the conduct of the poll. I beg to move.
My Lords, when this issue arose, the view was taken that it was uncertain that that power existed and hence there was the need to put it beyond peradventure that it did. The issue was flagged up by the example of the Royal Mail that I gave, and there was concern that that power did not exist. As the noble and learned Lord says, it is a sensible power and one which I hope will commend itself to the Committee.
Amendment 110B agreed.
Amendments 110C to 110E
110C: Schedule 1, page 24, line 30, after “account” insert “of a counting officer or Regional Counting Officer”
110D: Schedule 1, page 24, line 36, after “Officer” insert “or the Chief Counting Officer”
110E: Schedule 1, page 24, line 42, at end insert “or the Chief Counting Officer”
Amendments 110C to 110E agreed.
Amendment 111 not moved.
112: Schedule 1, page 26, line 18, at end insert—
“( ) with the addition at the end of paragraph (b) of—“(c) the petitioner’s interest alone shall be sufficient to enable a petition to be lodged””
My Lords, I am pleased to move this amendment. It was suggested to me last year by the Law Society of Scotland and I tabled it last November—it seems like quite a long time ago. The amendment clarifies the basis on which a judicial review of the certification by the chief or regional counting officers of the ballot papers counted or votes cast in the referendum may be taken. As the Minister will know better than anyone present, now that the noble and learned Lord, Lord Mackay, has left the Chamber, judicial review is different in Scotland from other parts of the United Kingdom. In Scotland, a petitioner must have both title and interest to sue. In England, only interest is required. We submitted as inequitable in the context of a referendum on United Kingdom voting that the challenges to the count are based on separate legal rights north and south of the border. In order to have title to sue, a person,
“must be a party…to some legal relationship which gives him some right which the person against whom he raises the action either infringes or denies”.
This is from the case of Nicol (D & J) v Trustees of the Harbour of Dundee 1915.
In his Report of the Scottish Civil Courts Review, Lord Gill, the Lord Justice Clerk, has recommended in paragraph 25 that the current Scots law on standing is too restrictive and that the separate tests of title and interest should be replaced by a single test: whether the petitioner has demonstrated a sufficient interest in the subject matter of the proceedings. This would make the position the same in Scotland as it is in England for anyone who wanted to challenge the result of the referendum, as recommended by Lord Gill. The amendment seeks to give effect to that recommendation.
This is an important point which my noble friend Lord Foulkes has put so accurately. The position should not be different in England and Scotland. In England, interest is sufficient, which means a general interest—almost in a layman’s sense—in the subject matter, whereas in Scotland, interest and title are needed, title meaning, as my noble friend Lord Foulkes said, some legal relationship which gives them a right to sue. The amendment would make Scotland and England the same in relation to whether you are entitled to challenge an electoral process which is identical on both sides of the border. That seems sensible. I would be interested to hear what the Minister has to say.
I am grateful to the noble Lord, Lord Foulkes, for bringing this amendment forward. He and I well know that the matter has been raised by the Law Society of Scotland. Indeed, I tabled a similar amendment in the previous Parliament.
The amendment would amend the provisions so that a challenge brought through judicial review in Scotland can be launched if its purposes are on the same basis as proceedings elsewhere. In Scotland, there are two separate tests for bringing judicial review, in that a petitioner has to demonstrate both title and interest, whereas in England, Wales and Northern Ireland there is a single test of interest alone.
The noble Lord, Lord Foulkes, also mentioned the recommendation made by Lord Gill, the Lord Justice Clerk, in his Report of the Scottish Civil Courts Review. However, I am concerned that because of the way in which this amendment is drafted, it will not have the desired effect. By stating that,
“the petitioner’s interest alone shall be sufficient to enable a petition to be lodged”,
it has almost gone too far and would effectively disapply the need to establish all other matters when considering a case for judicial review—including, indeed, whether there is sufficient legal grounds for a challenge.
The other, perhaps more practical, point is that it is difficult to see what the practical effect would be, as we think it is likely that the Scottish courts would entertain a judicial review from any elector entitled to vote at the referendum or at parliamentary elections and any permitted participant. By their very nature, they have an interest—they were taking part in the election.
We should be mindful of the fact that this issue goes wider than the referendum alone. It raises important issues about the nature of judicial review in Scotland, not least those flowing from Lord Gill’s report, and the circumstances in which they should be permitted to raise petitions for judicial review. That is an important issue. It is one that undoubtedly is receiving detailed consideration, not least by the Scottish Government and the Scottish Parliament. It would not be helpful if this Bill somehow tried to pre-empt it on an ad hoc basis, particularly, as I have indicated, we believe that an elector in Scotland would be able to raise a petition.
On the key point, is the Minister saying that because of the recommendation of Lord Gill, he believes that a petitioner in Scotland could raise it on interest alone, without any title, so it would in effect be the same as in England? I am not quite clear.
My Lords, if the noble Lord will bear with me, the Lord Justice Clerk, Lord Gill, recommends in his report that the separate test of title and interest be replaced by a single test, that test being where the petitioner has demonstrated a sufficient interest in the subject matter of the proceedings. That is not specific to this referendum. We have a quite important change in the law of judicial review in Scotland anyway and it goes along with numerous other recommendations on civil procedure in the Scottish courts. These matters are, I am aware, under consideration, but it would not be appropriate in this Bill to do it on a one-off basis, particularly in circumstances where we believe that being a participant in the referendum, one would qualify to challenge, if indeed that situation should ever arise.
That is very helpful. I read the noble and learned Lord, Lord Wallace of Tankerness, as saying that the current requirement in Scotland for judicial review is title and interest. He is expressing the view from the Dispatch Box that if you were an elector in the relevant election that you wished to challenge—the referendum—that would give you title and interest for the purpose of Scottish judicial review. That being so, the difficulties and dangers of trying to do an ad hoc change here do not arise and we should be reassured that any elector would be able to bring a judicial review challenge in Scotland, just as they would in England.
Before the noble and learned Lord finishes on that point, I feel some concern that he is not prepared to put on to the statute book the view which he has just expressed: that title and interest would necessarily be found by a court to exist here. The worry would be that there could, theoretically, be people advising in Scotland who will be unaware of the discussion now taking place and of the deliberate abstention from following up Lord Gill’s advice on a one-off basis on this very point, where there is potentially a conflict between the practice in Scotland and that in England. Would it not be possible to think of some way of putting on to the statute book information so that anyone advising would see that title and interest were thought to be, by the Minister or by the Government, both present in this case?
That is an important point, one which I wish to reflect on. I think it is satisfactory as it stands, but I understand what the noble Lord is saying: that there may be circumstances where, in the absence of any reference, someone may not appreciate that fact. Without making any commitment, I will look at that and see whether there is a way. As I have indicated, as the amendment stands there is a problem, too. In fact on interest alone, regardless of anything else, it would qualify and I am sure that is not what the noble Lord intended.
I think I am right in saying that the debate on whether the schedule be agreed is also a part of this, but perhaps I can reply later to that debate as part of this group.
I want to go back to my earlier intervention. As I understood the noble and learned Lord’s reply, under paragraph 10(5), the Minister may reimburse reasonable expenses incurred by a registration officer for a local authority. Now, if the Government are in a position to reimburse such reasonable expenditure prior to the referendum, should that information not be communicated to local authorities? It might well be that some local authorities want to run a blitz campaign prior to the referendum, to increase registration. The Government appear, in the answer that the noble and learned Lord gave me, to be to some extent offering them the resources as long as the expenditure is reasonable. Perhaps the Minister might write to me on this point, because I am sure that local authorities will have picked up on his responses to my earlier interventions.
I am certainly more than happy to write to the noble Lord on that point. I do not think that I need to elaborate on what I said to him before. I want to indicate briefly that Schedule 1 makes provision about the key aspects of the conduct of the referendum and the regulation of the referendum campaign. The approach of the Government in doing this has really been to replicate the provisions that are made for parliamentary elections, where they are appropriate. However, there are some areas where we need to make specific provision to tailor-make the provisions for this referendum. On the campaign spending and funding framework already in place for referendums, what there is under the PPERA will generally apply. I commend this schedule to the Committee inasmuch as it tries to replicate, wherever appropriate, the rules which are now well tried and tested.
I am grateful to the Minister and, particularly, to my noble and learned friend Lord Falconer for their exchange, which helped to clarify the situation. I was surprised because this amendment was in fact drafted by our mutual friend Michael Clancy, who has done a lot of these before and understands parliamentary drafting very well. However, I was particularly grateful for the intervention from the noble Lord, Lord Neill, on the Cross Benches, and for the Minister’s response: that he will look at this again to see whether there is a way to achieve it so that Scots and English people will have the same rights guaranteed on both sides of the border, without any court having to make a decision and without creating a precedent which might cause any difficulties for other aspects of judicial review. On the basis that the Minister has been very helpful in giving me that assurance, I beg leave to withdraw the amendment.
Amendment 112 withdrawn.
Amendment 112ZA had been withdrawn from the Marshalled List.
Debate on whether Schedule 1 should be agreed.
I should perhaps have asked this before but, on page 25, Schedule 1 requires the Electoral Commission to,
“prepare accounts in respect of their expenditure in relation to the referendum”,
“directed to do so by the Treasury”.
Is the Treasury going to give such a direction? It seems extraordinary that we would not know what the expenditure of the Electoral Commission was on the referendum unless a direction had been given by the Treasury. It might be that this is, as it were, language which is always in, and that it will of course give that direction, but I thought that it was a very odd way of doing it. It would mean that we could not find out how much had been spent on the referendum, but you can bet your bottom dollar that there will be a lot of questions asked about how much the referendum cost at some stage.
My Lords, I probably share the noble and learned Lord’s view. It is almost counterintuitive to think that the Treasury might in some way not wish that—well, it may be, I do not know. Freedom of information requests might well flow fast and furiously if that did not happen. Perhaps if I talk long enough, I may get a definitive answer on whether this is indeed something that generally appears in such legislation or whether there is some reason unbeknown to us.
The answer is that it is part of the Electoral Commission’s accounting framework that it normally accounts to the Speaker’s office. I suspect that the paragraph makes provision that the accounts in relation to the referendum could be extracted. If that is incorrect, I will ensure that a proper clarification is intimated to the noble and learned Lord and duly circulated.
As the noble Lord the Leader of the House said, I am getting a sapling of an idea of what the reason is and I think I understand. This is not a major point, but perhaps the noble and learned Lord could write. He should not bother to write if the sapling of the idea is, as I think was said, that we have to do it slightly differently because of this and that there will be accounts. If there will not be accounts available, perhaps he should write; otherwise, we can forget it.
Schedule 1, as amended, agreed.
Schedule 2 : Rules for conduct of the referendum
112A: Schedule 2, page 29, line 8, leave out “25th” and insert “30th”
My Lords, I am grateful to be able to move Amendment 112A, which is grouped with Amendments 112B and 112C. Amendments 112A and 112B are to some extent probing amendments, while Amendment 112C goes a bit further than that. The first two refer to the publication of the notice of the referendum and the notice of poll. They would change the publication of the notice of the referendum from not later than the 25th day before the day of the referendum to not later than the 30th day and the notice of poll from not later than the 15th day to not later than the 20th day. The idea of this is that in a number of elections recently the elbow room between the publication of the notice and the notice of call and the actual referendum itself has not given enough time for the issue of postal ballots or the return of postal ballots and all the other procedures in between that need to take place.
Part of this is caused by the postal service being no longer quite as fast as it used to be, when we used to get guaranteed delivery of first-class letters the next day, and partly because the administration is becoming much more complicated. The administration in this case, particularly Scotland and Wales, will be even more complicated because for postal ballots there will be three ballot papers sent to some, two to others and one to others. It is a very complicated exercise which has to be carried out in a limited period of time.
Before the noble Lord, Lord Rennard, jumps up and says that this only deals with the referendum and that there are elections as well, let me say that I fully understand that consequential amendments will be required in relation to that if we agree Amendments 112A and 112B. But more elbow room needs to be given. I am sure the noble Lord, Lord Rennard, having been involved in so many elections, my noble friend Lord Collins, who masterminded elections for a number of years, and others who have been involved in elections will know that that timetable has created some problems for those involved in the practical operation of elections and referenda.
Amendment 112C would change the polling hours, currently 7 am to 10 pm, to 6 am to 11 pm. I think that we should do everything possible to make it easier for people to vote. Extending the arrangements for postal voting has been particularly helpful. The fact that you no longer have to prove that you are incapacitated to get a postal vote and that people on holidays can get postal votes has made it easier for such people to vote.
I would like to see us move towards a situation where voting took place at weekends so that you did not have to rush to do so on a working day between 7 am and 10 pm. If you could vote on either a Saturday or a Sunday, that would take account of religious objections to voting only on a Sunday and would make it much easier for people to cast their vote. As I said to the noble Lord, Lord Rennard, if that were agreed for the referendum, there would be consequential amendments in relation to the election.
I have accepted that I cannot change the dates to Saturday and Sunday. However, I have been more modest and suggested an hour earlier in the morning and an hour later at night. We were talking earlier about people in Sheffield and elsewhere turning up at 10 pm and not being able to vote at the last election, and this proposal is one way of resolving that. It gives a bit more time for people to vote in the complicated election and referendum situation that we are going to have. It also takes into account different working patterns.
Some people find it difficult to vote between 7 am and 10 pm, and anything that makes it easier for them to do so will be helpful. There are people who start work at 7 am and, for their own reasons, may not be able to get to the polling station by 10 pm. There are people whose life patterns and activities have changed. There are some people who are doing two jobs who will find it difficult. This just makes it that little bit easier for people to get to vote and anything that helps in that direction should be encouraged.
My Lords, I will speak briefly in support of my noble friend’s Amendment 112C. There are two types of people in particular that this amendment would help. There is still what is called a three-shift pattern in factories and elsewhere of 6 am to 2 pm, 2 pm to 10 pm, which is known as a back shift, and 10 pm to 6 am on a night shift. I worked that pattern myself for many years. The 6-to-2 shift sounds great—you get into work at 6 am, finish at 2 pm and have the rest of the day to yourself. Unfortunately, most people who have worked that shift will tell you that they spend most of the afternoon lying asleep on the couch, trying to catch up with the disruption to the normal sleep pattern and normal shift pattern. You can wake up feeling disorientated at times. It may sound a bit silly but I can assure people that the disruption to your normal pattern, in working that three-shift pattern, can have that effect on you.
There is also the back shift between 2 pm and 10 pm. It sounds great—you can get up in the morning and have time to do plenty of things before you start work at two o’clock. But you can have quite an extended travel time to get to work for 2 pm and, with other things to do in the morning, you may find that by the time you finish work at 10 pm the polling station is closed. As for the people who do the night shift, again it sounds great, as you have plenty of time during the day, but ask anyone who works the night shift and they will tell you that their day is disrupted. If there is a constantly changing shift pattern, working a different shift each week following the 6-to-2, 2-to-10 and 10-to-6 three-shift pattern, I can assure your Lordships that there is a disruption to the patterns of sleep and behaviour.
The second category is a new and developing pattern to which my noble friend Lord Foulkes of Cumnock has referred. This is the growing number of people who manage two jobs, particularly women. It always seems to be women who get landed with the part-time jobs, though they are not quite cheap labour thanks to the Labour Government’s national minimum wage law that was opposed by the Liberals and Tories at the time. Nevertheless, these people are trying to keep two jobs going and are rushing between them. An extra hour’s voting time at the end of the day will give people an extended opportunity to vote.
I believe that that category of part-time workers is growing. Again, I do not like it but they are mostly women workers because they have got to snatch a job of two or three hours to cope with child care and all the rest of it. They have to dive back, run a house, and probably get their man fed and out to work. There are some areas in the world where women still do not have a proper place in life. Keeping family together falls harder on women than on men, and I regret to say that a sexist society still operates like that. I would certainly support anything that can help women and part-time workers in that category. I would indicate my strong support particularly for Amendment 112C.
My noble friend Lord Rooker has Amendment 113 in this group, but he has had to leave. It is effectively the same as the amendment tabled by my noble friend Lord Foulkes in that it proposes that the polls should shut at 11 pm. The point has already been made but it seems a good thing that the time should be extended for people to vote. There may be reasons why that is a bad thing. I will wait to hear what the Minister says.
The next group of amendments, which would have been moved by my noble friend Lord Rooker, but which I will move because he cannot be here, seek to deal with the overcrowded polling stations issue, which we have already discussed and in which there was an impressive intervention by the noble and learned Lord, Lord Mackay of Clashfern. There was quite broad support for the amendment tabled by the noble Lord, Lord Phillips. The amendment that proposes that the polls should shut at 11 pm, as opposed to 10 pm, might, subject to the information that the Minister has, be of assistance in relation to that. If the number of people who would vote between 10 pm and 11 pm was quite low—even though there might be a late surge—it would reduce the likelihood of what happened in the previous general election happening again. It might, for that additional reason, be worth contemplating.
I thank the noble Lord, Lord Foulkes, for raising these issues with his amendments, which would provide electors with earlier notice of the referendum and give voters extra hours to cast their ballots. As noble Lords are aware, it is the Government’s intention that the referendum should be held on 5 May. Therefore, any alterations to the timetable and the hours of polling proposed for the referendum would inevitably create inconsistencies between the rules governing the referendum on the one hand and those governing the elections scheduled to take place on 5 May, with which the referendum will be combined, on the other. Fundamentally, this would be confusing and unhelpful for voters. Noble Lords may already have noted that that view is supported by the Electoral Commission. The amendment would also be inconsistent with the combination of rules in Schedules 5 to 8 to the Bill.
I turn to the first part of the amendment, which deals with the referendum timetable and the issuing of the notice of poll. With the exception of the Scottish parliamentary election, the 25-day timetable will be used for all other polls that are scheduled to take place on 5 May 2011. During the Bill’s passage through Parliament, we specifically amended the deadline for issuing the notice of poll from 16 to 15 days before the date of the poll. The noble Lord’s amendment would take that up to 20 days before the date of the poll. The purpose of the amendment was to ensure that a consistent deadline for the publication of the notice of poll applied for most of the polls that will be combined across the United Kingdom.
Only in Scotland will the deadlines for publication of the notice of the two combined polls be different from each other, due to a slightly different timetable that applies to Scottish parliamentary elections. However, moving the deadline to 20 days before the poll would lead to inconsistency right across the United Kingdom and potential confusion for voters and electoral administrators. The Electoral Commission will take steps, however, to ensure that electors are aware of the referendum before the statutory timetable commences, and electors will not have to wait until notice of poll is issued, or until they receive their official poll card, to change their voting arrangements should they wish to do so.
I turn now to the amendment on polling hours. It is an important amendment and important arguments have been adduced in its favour. It would extend the polling hours for the referendum, which could be difficult for polling staff and polling agents. It may even be difficult for people who rely on public transport to get to a polling station for 6 am for the opening of the poll. At the end of the day, extending the close of poll by one hour could have implications for the staff at the time of verification, not least in those cases where two polls will be combined on one day. However, perhaps more importantly, it could be confusing to voters to have polls taking place on the same day but closing at different times. Under this proposal, voters would turn up before 7 am or after 10 pm to vote in the referendum, but would perhaps be told that they were unable to vote in the Scottish parliamentary election, the Welsh National Assembly election or some of the local government elections in England. I suspect that would increase, rather than reduce, the possibility of voters missing their opportunity to vote, which could cause some dissension.
The important point, which I think the noble Lord, Lord Foulkes, mentioned, is that the opportunities for postal voting and voting by proxy are now such that if the current polling hours are unsuitable for electors, they still have the opportunity to vote. I readily accept that in many cases work patterns and family patterns may make it difficult, but it is now possible to vote either by proxy or by post. As we all know from taking a keen interest in elections, the number of postal votes has increased considerably; obviously a good number of people take that opportunity. It may be that the message about opportunities for postal and proxy voting can be reinforced in the context of information relating to the polls.
It is also important that the issue regarding the timetable for the polls goes wider than the referendum alone. It should perhaps be reviewed in the longer term for future national elections and referendums. With these words and assurances, I hope the noble Lord will withdraw his amendment.
I find that a very helpful reply. The Minister has explained and answered the points raised very well. We could have altered the hours for all the elections as well as the referendum if we had had more time but we are rushed in this and must do everything by 5 May. That is part of the problem. However, given that we cannot change the time for elections, it would be right—
I accept what my noble friend says about the Minister’s reply, but is there some way, through the amendment, the schedule or elsewhere, to initiate a pilot project somewhere, or at some point in another election? That would test those hours. I am particularly interested in Amendment 112C. Could we look at the possibility of some kind of pilot in an election in a selected area to see if it made any difference?
That is a very interesting suggestion. Although we are rushed in this, I hope that, for future elections, the Electoral Commission could look at longer hours and, perhaps, different days. I think the Minister said towards the end of his reply that he wanted this. Pilots have been done. As my noble friend Lord Collins would remind me, we had an all-postal-vote pilot in the north of England, which had a very interesting result. I should perhaps have declared my interest as a postal voter. I accept what the Minister has said but I hope we will look at ways in which we can make it easier for people to vote, such as voting at weekends and longer voting hours. If it can be done with one or two pilots, as my noble friend Lord McAvoy said, that would be very useful. In view of the Minister’s very helpful reply, I will withdraw the amendment.
Amendment 112A withdrawn.
Amendments 112B to 114 not moved.
115: Schedule 2, page 32, line 24, at end insert “but no polling station shall be allocated more than 1050 electors”
My Lords, I will move and speak to the amendments in this group on behalf of my noble friend Lord Rooker. There are three of them, two of which seek to deal with the chaos at the end of the general election. On page 32, paragraph 13(1) of Schedule 2 to the Bill, “Rules for the Conduct of the Referendum”, provides that:
“The counting officer must provide a sufficient number of polling stations and, subject to the following provisions of this rule, must allot the electors to the polling stations in whatever manner the officer thinks most convenient”.
My noble friend Lord Rooker proposes that that be amended so that,
“no polling station shall be allocated more than 1050 electors”.
If you put a limit on the number of electors sent to a polling station, you reduce the chance of there being the chaos that there was at the previous general election.
The next amendment in this group is Amendment 120. At page 35 of the Bill, paragraph 17(1) says:
“The counting officer must provide each presiding officer with however many ballot boxes and ballot papers the counting officer thinks are necessary”.
My noble friend Lord Rooker proposes amending that to ensure that the counting officer in every ballot station has as many ballot papers as there are electors allocated to that polling station. That is sensible because it means that they cannot run out of ballot papers. Again, it is a way of reducing chaos.
The final amendment in this group is Amendment 121. On page 35—I know all noble Lords are following this in their own copies of the Bill because it is so completely fascinating—sub-paragraph (7) says:
“In every compartment of every polling station there must be exhibited the notice—
‘Mark one box only. Put no other mark on the ballot paper, or your vote may not be counted’”.
If noble Lords turn to page 61, they will see that, instead of “Mark one box only”, the wording in the second paragraph of the notice given there is:
“Vote in one box only”.
If noble Lords go to page 67, line 25, they will see the phrase:
“Vote in ONE box only. Do not put any other mark on the ballot paper”.
If noble Lords go to page 74, they will see in paragraph 2:
“Vote in one box only. Put no other mark on the ballot paper”.
My noble friend Lord Rooker says that “Mark one box only” and,
“Vote in one box only”,
say the same thing; that it is confusing to have different phrases on different notices; and that we should use the same phrase,
“Vote in one box only”,
right across the notices given to electors. That seems extremely sensible, so his amendment, which affects page 35, rule 17(7), is to take out the words “Mark one box only” and put in the words
“Vote in one box only”,
because that is the phrase used everywhere else. It is difficult to imagine—though I am quite sure that the noble and learned Lord will have some clever answer for this—why different phrases were used.
The first two amendments avoid the chaos. The third amendment—I am not sure why it is in this group, but it is easy to deal with in this group—is to ensure consistency in the instructions given to electors. I beg to move.
My Lords, one rarely sees an amendment in the name of my noble friend Lord Rooker that does not have a huge amount of common sense within it. We all remember what happened at the general election, where people were queueing at polling stations because the flow of people simply could not be accommodated, and we can all agree that at this referendum election there is certainly going to be more confusion than there is at a normal parliamentary election, where everyone understands what is required of them. It is the simplest possible thing to have to do—put a cross by their favoured candidate—and we all accept the result; at least, the vast majority of us accept the result.
What the noble Lord proposes here would be desirable in any event, if we were just going through the same system as we did at the last general election, but given that we are going to have polling stations where there is more than one decision being made and where electors will confront, for the first time, the option of the alternative vote and have to understand what is involved, there is bound to be confusion. I predict with complete certainty that, should we go down the road to AV, there will be far more spoiled ballot papers than there normally are—that has been the case with every move away from first past the post. Staying with the referendum, there will be people who will seek the advice of polling clerks. I do not know what the law is if they seek that advice. Are the polling clerks expected to explain what the choice is, or are they supposed to keep quiet about absolutely everything if a potential elector is confused?
I hope that the Committee will accept my proposition that this is going to be more complicated than a general election. I hope that the Committee will accept the evidence of their own television sets that, at the last general election there were polling stations that simply could not cope with the number of electors coming at a particular time. It must therefore follow, surely, that we need to make special provisions for this very unusual election where there is bound to be more confusion. I cannot be confident that there will be large numbers of people voting, but we need to allow for that and we clearly were not allowing for that effectively at the last general election. Amendment 115 is presented with characteristic simplicity and common sense in the name of my noble friend Lord Rooker and I strongly support it.
My Lords, I want, very briefly, to remind civil servants, when they are drawing up the wording as currently set out in the Bill, of what happened with the ballot paper in the first mayoral elections in London. We had made recommendations as to what should be on the ballot paper; the civil servants basically took over the agenda and wrote the question; I objected very strongly, but of course as usual, I was overruled on the detail; and the result was that a lot of ballot papers in the first mayoral elections in London were wasted because of the framing of the question.
Wording is crucial and I think it has to be politicians who decide on that wording, because it is only we who understand how electorates respond to certain language. Therefore, I hope that a debate takes place within the department about whether the current wording in these areas of instruction is right and whether the wording that my noble friend wishes to introduce for the benefit of people voting in the referendum might be better. The Minister should take this as a very serious amendment: it might not be the final wording, but let there be a further debate, because if it does not take place, the danger is that the events of the first mayoral elections in London may well be repeated.
My Lords, I am grateful to the noble Lord, Lord Rooker, for tabling these amendments; he indicated to me that he had to leave and that they would be spoken to by the noble and learned Lord, Lord Falconer. They raise important issues which it is very helpful for the Committee to have the opportunity to address. Amendment 115 obliges by law that counting officers should not allocate more than 1,050 electors to any polling station within their voting areas. This is a very worthy and laudable attempt to address the problems, referred to by the noble and learned Lord in moving this amendment, which arose at some polling stations in the May 2010 election, when a number of electors were unable to cast their votes due to queues forming at certain polling stations. Although these incidents were isolated, they are certainly not taken lightly—I emphasise that again.
It is the responsibility of electoral administrators to provide for the smooth running of the voting process in elections, and that includes contingency plans to cater for events such as when there is a higher than expected turnout at one or more polling stations for which they are responsible for allocating voters and for staffing. The chief counting officer for the referendum is, of course, the chair of the Electoral Commission and she has the power to direct all other counting officers across the United Kingdom who administer the referendum. The Electoral Commission has indicated that the chief counting officer intends to issue directions to counting officers as to the maximum number of electors to be allocated to any polling station and the associated minimum number of staff to be present at each polling station. As I indicated in response to an amendment moved earlier by the noble Lord, Lord Lipsey, the Electoral Commission has already started to issue guidance to counting officers on the number of polling staff who will be required.
I am therefore concerned that the amendment would remove any discretion, both of the chief counting officer and of all other counting officers, to decide how many electors should be allocated to each polling station and the number of staff who should be present at each polling station. To give an example, it does not seem sensible to require that a village of, say, 1,200 electors should have two polling stations when there is no suggestion that previous arrangements for that village have proved inadequate. Indeed, it might even mean that fewer staff were available at each polling station to assist voters. It is that kind of flexibility which we would not like to remove from the chief counting officer.
We know that queues arose in the elections of May last year primarily because of planning failures and the lack of effective contingency planning. However, we believe that at the polls being held in May this year, better guidance, better staff training and support and better planning procedures in the run-up to the polls would be more appropriate and more effective in addressing the issues that have been raised, as opposed to placing statutory limits on the number of voters who can be allocated. I hope that the chief counting officer’s stated intention to issue directions to counting officers on this issue will reassure noble Lords and that the House will recognise that the amendment would reduce flexibility, and that that in turn could increase risks and not necessarily prove good value for money.
On the second amendment, which would oblige all counting officers to print 100 per cent of ballot papers, I must say that until last year I always thought that that was the case anyway. The purpose is that they should print the same number of ballot papers as there are voters on the electoral register in their area of responsibility. Currently, they must print only the number of ballot papers that they feel is necessary.
As the Electoral Commission notes, there were problems with ballot papers at the previous general election. The Report on the Administration of the 2010 UK General Election stated at paragraph 5.13:
“We are also aware of some isolated reports that voters at a small number of polling stations may also have experienced other problems. These included … polling stations where supplies of ballot papers ran out during polling day before being replenished”.
Even though these incidents were isolated and do not appear to have stopped anyone casting their votes, we certainly do not take that situation lightly. It is the responsibility of electoral administrators to provide for the smooth running of the voting process. That includes contingency plans to cater for events such as a higher than expected turnout.
However, I hope to reassure the Committee that the intention of the amendment can be achieved without the need for its inclusion in primary legislation. The chief counting officer for the referendum—as I have already indicated, she is also chair of the Electoral Commission—has the power to direct all other counting officers who administer the referendum. Further discussions with the Electoral Commission have identified that the chief counting officer intends to direct all counting officers to print 100 per cent of their ballot papers. The Electoral Commission believes that the power of direction allows the chief counting officer to require counting officers to print ballot papers according to her direction. This allows her suitable flexibility to be able to decide what is right in particular circumstances, should this be necessary. I hope that the chief counting officer’s stated intention to direct that 100 per cent of ballot papers be printed will reassure the Committee, but equally we believe that the Electoral Commission’s preference for the chief counting officer to have flexibility in this area should also be respected.
Finally with regard to Amendment 121, I take the point that wording is important. However, I do not accept the concern of the noble Lord, Lord Grocott, that holding the local elections and the referendum together will cause huge difficulty given that last year a general election and local elections were held together, and that is not unprecedented. The amendment seeks to modify the wording of the notice which must be exhibited in polling stations across the country on the date of the poll. This is a helpful and sensible amendment and would ensure consistency with the formulation of words used in a number of forms in the Bill, to which the noble and learned Lord drew our attention, such as the postal voting statement, declaration of identity and proxy poll cards. The noble and learned Lord asked me to explain the measure. I draw the Committee’s attention to rule 10 of this schedule on page 31 of the Bill, which grants the chief counting officer responsible for administering the poll the discretion to amend the voter-facing materials prescribed by the Bill for the purposes of making these materials easier for voters to use or understand. This encompasses the notice prescribed by rule 17(7), which is the subject matter of this amendment.
I do not think that it would be helpful at this stage for the Committee to amend aspects of the Bill which are the subject of future modification by the chief counting officer. We know that she is considering the modifications that she may wish to make to these voter-facing materials, and the Government do not wish at this time to pre-empt any decisions which she may take to amend them. However, I assure the Committee that the Government have discussed this amendment with the Electoral Commission and the chief counting officer will bear this recommendation in mind when publishing modifications to the forms, as she is statutorily entitled to do under rule 10. Practical issues have been raised but I hope I have reassured the Committee that an element of discretion is left to the Electoral Commission and that these very important issues are being addressed. On that basis I ask the noble and learned Lord to withdraw the amendment.
I am not asking the noble and learned Lord, Lord Wallace, to respond further; I just want to put the record straight. I am not sure that I made it clear that my concern was not about holding local elections and a referendum on the same day but about the fact that the referendum itself was something entirely new. The question voters are going to be asked is whether they support the first past the post system or the alternative vote system. However, a lot of people will be confronted with that question for the first time in their lives and it would not be surprising if they found filling in their ballot paper rather more confusing than normal.
I am extremely grateful to the noble and learned Lord for his detailed response. However, unfortunately, it did not quite hit the mark on any of the three amendments. I completely take his point that it would be ridiculous to have two stations in certain places because you might have a village with 1,051 electors. However, I wonder whether that would not be best dealt with by saying that the norm should be 1,050 electors, save where there are exceptional circumstances, because generally you are trying to get to a figure of 1,050.
Secondly, I was confused by the noble and learned Lord’s answer in relation to what the chair of the Electoral Commission intends to do. I understood him to say that she intends to direct that 100 per cent of ballot papers be printed, but that she wants flexibility. But what does she want flexibility for if she intends to instruct that 100 per cent of ballot papers be printed? Why not put in the Bill what I understood the first part of the noble and learned Lord’s answer to indicate what she intended to do? That would give certainty.
Thirdly, in relation to the difference between the notice and the form, the noble and learned Lord took a good shot at this but I do not think that he said that there was any particular reason why they were different. As my noble friend Lord Grocott says, this will be a completely novel experience for voters to vote on whether there should be first past the post or an alternative vote system. There needs to be clarity. Yes, he is right that the chief counting officer has the power to change the forms but the wording of the Bill is mandatory. For example, paragraph 17(7) states:
“In every compartment of every polling station there must be exhibited the notice—
‘Mark one box only’”.
If I were the chair of the Electoral Commission, although I had a power to make changes, in the context of mandatory language I would feel safest, legally, in not making a change. We agree that it is much better if the wording is the same right across all the material. One of the purposes of scrutinising this Bill is to make it better, so let us make it better and make it consistent in relation to all the places where its provisions will be applied. That would make for a better organised poll and would get rid of any difficulty or risk in that regard for the chair of the Electoral Commission.
I absolutely respect the effort that the noble and learned Lord has made but my noble friend Lord Rooker may bring all three of these amendments back, with a slightly different amendment in one case and broadly the same amendment in the other two. In the case of the third amendment, it would help greatly if he were willing to go through the Bill and ensure that the wording is consistent, as his officials can do that much more quickly and much more consistently than we can. On that note, I beg leave to withdraw the amendment.
Amendment 115 withdrawn.
Amendment 116 not moved.
116A: Schedule 2, page 33, line 1, leave out from “with” to second “or” in line 2 and insert “paragraph (3) or (4),”
My Lords, this is a minor and technical amendment to correct a cross-reference under rule 13(6)(a) of the referendum rules. The effect of this minor amendment is that the number of ballot papers counted or votes cast may not be questioned by reason of any non-compliance with the provisions under rule 13(3) for England and rule 13(4) for Wales, Scotland and Northern Ireland relating to the provision of polling stations. Noble Lords will note that, as it stands, the reference is not to rule 13(3) and rule 13(4) but rather to paragraph 13(5)(a) and (b). The purpose of this amendment is to get the cross-reference correct. I beg to move.
Just for clarity, the reason why sub-paragraph (5) is not now included as an exception in sub-paragraph (6)(a) is because it is included in sub-paragraph (4). Is that right? Looking at it to start with you want it to apply to sub-paragraph (5) as well, but sub-paragraph (5) appears to go in the drafting because the deletion in the amendment goes up to the second “or” in the second line. You would not want a vote not to be counted if the polling station happened to be in the wrong district. I assume that sub-paragraph (5) is deleted because it is included in sub-paragraph (4), or am I wrong about that? I cannot see any reason why a technical failure of the position of the polling station in Wales, Scotland or Northern Ireland should vitiate the vote. I assume it is because the polling stations in sub-paragraph (5) are included in sub-paragraph (4). Officials are nodding. It might be better if the noble and learned Lord says yes.
Amendment 116A agreed.
Amendments 117 to 121 not moved.
Sitting suspended until not before 8.27 pm.
122: Schedule 2, page 38, line 37, leave out “anyone present” and insert “the first elector”
My Lords, I speak on behalf of my noble friend Lord Rooker. This small amendment refers to the sealing of ballot boxes before the commencement of the poll, as provided for in the rules for conduct of the referendum given in Schedule 2 to the Bill. The schedule currently advises that the presiding officer must show “anyone present” in the polling station immediately before the commencement of the poll that the ballot box is empty. My noble friend's argument—we do not make too much of this or say that it is a major issue—is that this should be changed to require the presiding officer to show “the first elector” who comes to vote in that polling station that the ballot box is empty.
We believe that the amendment would add a degree of precision to the requirement on the presiding officer and add to confidence in the legitimacy and validity of the poll and its result. Being more specific about who is to see and verify that the ballot box is empty is a small but important symbol that the poll is to be carried out properly. It is too vague to say “anyone present”. That could be the cleaner or the person who is with the presiding officer to help with the running of the poll. Why not require that the first elector who comes through the door should see that the ballot box is empty before casting their vote, which would be the first one in the box? As I said, this is not a major amendment, but I think that it deserves an answer. I beg to move.
My Lords, I rise briefly to support the amendment, on which I will enlarge just a bit. We have good traditions and symbolism in British democracy. I have been an election agent and a candidate. I thought that it was the law that either the agent or candidate could see inside each ballot box before it was locked. That happened regularly. Perhaps it was only in council elections—I am not sure, but I used to see it quite often. I agree very strongly with entrenching the symbolism so that it is not just anyone who sees that part of the procedure. Perhaps we could embellish our democracy a bit by making a bit of a tradition and a bit of a show, to get people there and show that the box is indeed empty. While folk may scorn that type of thing, nevertheless it would show clearly the symbolism that our democracy is vibrant and seen to be so.
My Lords, this amendment takes us back to the debates two years ago on the Political Parties and Elections Bill, for which we took Committee stage in the Moses Room. There were long debates on the whole issue of fraud in elections. From the discussions that everyone had been having with the Electoral Commission and with Ministers during the course of the debate, it was clear that the Electoral Commission was bending over backwards to find ways of sorting out the problem of individual registration. I tabled a number of amendments dealing with individual registration but none in this particular area because it had not dawned on me at the time that, in the very different world in which we now live, there might be those who, in certain conditions, might be prepared to abuse the system.
No major change is being asked in this amendment. This minor change would check that the first elector was the first elector, so that people would know whether there were ballot papers already in the ballot box, to put it bluntly. Even though fraud at this point in the process might not be prevalent, the proposed change would help reassure the wider public that everything possible is being done to ensure that the electoral system in this country has integrity.
My Lords, I speak in support of Amendment 122. I think that it is a small but important step; in fact, I would like to see us go further. It is absolutely critical that we take every action within reasonable grasp to protect and enhance the integrity of the voting system, which has been brought into disrepute in recent years.
I think particularly of the comments by the noble Baroness, Lady Warsi, about ballots that she believed had been in contravention of correct process. I acknowledge that at times it is difficult to tell whether the noble Baroness is speaking on behalf of the Government, the coalition, the Conservative Party or a faction within the Conservative Party. For example, I think of her comments immediately after the Oldham East and Saddleworth by-election about the right wing of the Conservative Party. I also think of her comments the previous night on BBC2’s “Newsnight” programme in connection with the Royal Bank of Scotland—I regret I was unable to be in the House this afternoon when this matter was handled in Questions—when the noble Baroness said that the Government were renegotiating contracts with executives of RBS. Since then, the Treasury has been very keen to suggest that it is not doing anything of the sort. However, the comments made by the noble Baroness on electoral issues were ones that we should take careful note of when considering this amendment.
I would actually prefer a change in the design of the ballot box. I would like to see ballot boxes that are transparent, so that it is possible for people to see their vote going into the box. The amendment deals with the authenticity and the integrity of the ballot process only at the time when the first decision is made on a vote, but I think that my proposal would bring huge confidence.
My first reaction is that a transparent ballot box could add to democracy and could be useful. On the other hand, when thinking of the mechanics of polling day, one has to consider that sometimes people do not fold the ballot paper properly and if that happened in a transparent box it would show who the person had voted for, or did not vote for, which would render the vote invalid because someone was able to identify it.
My noble friend is as sharp as ever on these issues. I had already given thought to that matter. I suggest to my noble friend that a ballot box could be transparent at the top, so that you could see your vote going in, but not transparent at the bottom where the vote rested. That would perhaps address the issue. I encourage the noble Lord, Lord Strathclyde, when he engages with his colleagues in the Cabinet Office on further constitutional reviews, to give this some consideration.
However, it seems to me that my noble friend Lord Rooker has made an entirely reasonable proposal that in no way seeks to obstruct the intention of government policy. It would be commendable to the House and to the country as it would endorse the integrity of the balloting process and the confidence that we can have in the outcome of elections conducted through such a mechanism.
I support the amendment as well. I support my noble friend Lord Myners in his idea of a transparent box, whether or not the bottom is transparent. I would rather we did not have ballot boxes at all and voted electronically, but that is a personal campaign which I have been running for a long time. I include in that this place as well. I notice that we will be able to bring electronic devices into the Chamber—but perhaps not yet—and then we can start to vote through them as well.
I have one question for my noble friend who moved the amendment. Who exactly is the first elector? In certain circumstances, those who work at the polling station can be electors in that seat. They could be given the right to vote prior to the polls actually opening. That is a bending of the rules but I think it happens. It is an easy way to ensure that someone who is working all day has the opportunity to vote first. How would my noble friend respond to such circumstances? I think there is some case for saying that the rules must be absolute and that the polling station must not open until 7 or 8 am, whichever election it is, and that no one can vote before then. I have a suspicion that in the past people have been allowed to vote just before the polling station opens.
Yes. Being an elderly gentleman, I have to accept that my experience of campaigning on a personal level precedes most of the changes in the rules as regards postal voting. My noble friend may very well have a point. I accept it is a minor point but I hope it will be considered.
I support the amendment. This election has the potential for some interest among a new group of voters, which is a particular interest of mine, as I have said before. I know this probably was not the rationale behind this situation, and that it was about the accuracy of and confidence in the vote, but there could be a certain jostling for position to be the first elector, which could be quite exciting on an issue like this.
I have, I promise, a very short anecdote to tell. At one time, the Labour Party was doing extremely badly in the polls and in November 1983 a friend of mine took his young son with him to the polling station. I will not name my friend as I am not sure this is legal, but his young son actually made the cross on the ballot paper and put it in the big black box. Thinking of the ballot as a lottery, the lovely little boy, who is now very grown-up, said, “Which one wins, Dad? Is it the first one out?”. In 1983, many Labour Party members would have said, “If only”.
What is interesting about that story, which has kept with me, is the excitement of a young person going to vote and the idea that the first elector would have a role in the endorsement of the process. I am sure that any of us who are involved politically would make sure that it was one of ours who was there, a young person or someone who had just got the voting right because they had become a British citizen. We would make something of that to give the citizen a particular tick to that process. I hope that that may be given serious consideration.
In the unavoidable absence of the noble Lord, Lord Rennard, I will be nitpicking. Surely, if this changes the regulations for the referendum, it will create problems if the old system will be continued for the local government and Scottish Parliament elections. The noble Lord, Lord Rennard, raised that point several times in previous debates. It is a valid point and something that my noble friend Lord Bach should address. I am not against that in principle but if we have a different system for checking the ballot box for the referendum from that in the Scottish, Welsh and local government elections, that might create problems.
My noble friend raises an interesting point. If in the Scottish election on 5 May, the first person in decides that they do not want to vote in the referendum at all and they only want to vote in the Scottish election, my noble friend’s point would be very apposite.
It would be even stronger. It is not just a question of whether they do not want to; they may not be eligible because, as I pointed out on a number of occasions, some may be eligible to vote in the Scottish Parliament elections; others will be able to vote in the referendum only; most of us—including, at last, Peers—will be able to vote in all three. That creates some confusion as to who the first elector will be.
Is not the answer to the Rennard question, on which my noble friend commented, to find out when we can expect further legislation in these areas? We know that a Bill is coming in on the funding of political parties. If the Long Title of that Bill was sufficiently wide, we might introduce a whole series of amendments governing elections and political parties. That might well be the peg, and we should be prevailing on the noble Lord, Lord Rennard, to push his luck with Ministers to secure an early introduction of legislation.
My noble friend is right in principle, but because we have this artificial deadline of having to agree everything before the referendum on 5 May, I do not think that there would be the time to do that. Now I know why the noble Lord, Lord Rennard, enjoys being such a nitpicker. It is quite fun challenging the amendments put forward by Labour Peers.
However, I think that the intention behind what my noble friend suggests is absolutely right. In a number of elections overseas, ballot boxes have been stuffed in advance by supporters of one candidate or another and elections have been challenged. That could happen in a referendum. The principle is very important, notwithstanding the technical problem that I have raised in the unavoidable absence of the noble Lord, Lord Rennard.
The noble Lord, Lord Campbell-Savours, is right: it would be far better to deal with and debate these issues in another forum or on another Bill. We resist the amendment, which, apart from anything else, we believe to be defective. The amendment requires the presiding officer immediately before the commencement of a poll to show the first elector, rather than anyone present in the polling station, that the ballot box is empty.
However, as the noble Lord, Lord Maxton, pointed out, no elector would be allowed into the polling station prior to the poll commencing at 7 am, which means that the presiding officer would be unable to show the first elector that the ballot box was empty before the start of the poll. In addition to the timing difficulties associated with the amendment, it can be argued that it is not necessary, as referendum agents will be able to appoint polling agents who may observe the presiding officer showing the empty ballot boxes before they are sealed prior to the start of the poll. Therefore, the question does not arise.
My Lords, I am not sure that it does not arise. The current wording of the Bill is:
“Immediately before the commencement of the poll, the presiding officer must show anyone present in the polling station that the ballot box is empty”.
I should perhaps have made this point in moving the amendment, but what happens—and I do not suppose that this is normal—if the presiding officer is the only person? The poll commences at a certain time. It must begin at the time set by statute or by statutory instrument. If he happens to be the only one who has turned up, the presiding officer would presumably have to show anyone present and the only person present is himself. I am sure that is not what is intended. The current language is not satisfactory.
I think my noble friend Lord Maxton is wrong on this occasion. In almost every case that I know of, those who work on elections do a great job as polling clerks and have postal votes. As my noble friend Lady Golding told the committee, they are obliged to have postal votes because they do not know where they are going to go or which polling station they are going to be at until quite a late stage. It seems a very sensible rule.
Because of the extraordinary support I had for this amendment, I am very tempted indeed to seek the opinion of the Committee, but in spite of pleas from behind me, what has held me back is that I think the clinching point was made by my noble friend Lord Foulkes. If we were to do it for the referendum only, it would leave a difference between practices in other elections and practices in the referendum. As my noble friend said, the answer is that there should be government legislation to amend electoral rules, but I cannot see that legislation coming through in a great hurry, so with enormous reluctance I beg leave to withdraw the amendment.
Amendment 122 withdrawn.
122ZA: Schedule 2, page 54, line 44, leave out from beginning to end of line 6 on page 55 and insert—
“(a) in relation to a voting area in England or a voting area in Wales that is not within sub-paragraph (b), the registration officer of the local authority in whose area that voting area is situated;(b) in relation to a voting area in Wales that comprises any part of the area of more than one local authority, the registration officer appointed under section 44(3)(b) of the Electoral Administration Act 2006 in respect of the Assembly constituency that corresponds to that voting area.( ) In paragraph (3)—
“local authority” has the same meaning as in paragraph 4 of Schedule 1;
“Assembly constituency” means a constituency for the National Assembly for Wales.”
My Lords, Amendment 122ZA is a minor and technical amendment to the definition of “relevant registration officer” under rule 53 of the referendum rules. This amendment will ensure that in Wales, as is already the case in other parts of the United Kingdom, the relevant registration officer will be the same individual for both the combined polls. I beg to move.
Amendment 122ZA agreed.
122A: Schedule 2, page 57, leave out line 28
Amendment 122A agreed.
Debate on whether Schedule 2 as amended should be agreed.
Before I speak on Schedule 2, I shall comment on the arrangements for the dinner hour to place on record that I object. I understand that there may have been agreement, but I am speaking as an individual Member. If we are a civilised House and we are to debate matters in a civilised way, we are entitled to proper mealtimes, and I think an hour should be made available for dinner. I say to the Patronage Secretary to the Government, the Government Chief Whip, that in future it would be very helpful if she could adopt a more civilised approach to our dining arrangements in the evening.
My Lords, I hear, of course, what the noble Lord says. This was an agreement with usual channels with his own Opposition Whips’ Office this morning. No representation was made to the contrary. It was an agreement made and, therefore, we stuck to our side of that agreement.
The House does wish to hear views on the Schedule 2 stand part debate. I am sure that the whole House wishes to make progress on this matter.
All I am saying is that, as an individual Member of the House, I object. Whether it was agreed by the usual channels or not is of no particular interest to me. All I am saying is that I think it is fair and more civilised that we can dine for a full hour.
I would like now to move to Schedule 2. A particular part of the schedule that is of interest to me is the question of the provision of polling stations, which is a matter of considerable controversy in constituencies throughout the country. Rule 13(1) in Schedule 2 states:
“The counting officer must provide a sufficient number of polling stations and, subject to the following provisions of this rule, must allot the electors to the polling stations in whatever manner the officer thinks most convenient”.
Rule 13(2) states:
“One or more polling stations may be provided in the same room”
Rule 13(3) states:
“In England, the polling station allotted to electors from any parliamentary polling district wholly or partly within a particular voting area must, in the absence of special circumstances, be in the parliamentary polling place for that district unless the parliamentary polling place is outside the voting area”.
Rule 9 refers to the use of schools and public rooms:
“The counting officer may use, free of charge, for the purpose of taking the poll—
(a) a room in a school within paragraph (3)”.
Paragraph (3) of rule 9 then goes on to make provision for schools in England and Wales, and in Scotland.
Now, the location of polling stations in individual constituencies—not only in elections, but particularly in this referendum—has a major effect on turnout. We cannot rely on a postal vote system, which some of us have great reservations about anyhow although it was part of the package introduced by the previous Government. Of course, the Government themselves obviously had reservations about what they were doing on postal voting, but it was felt that those changes would bring greater integrity into the electoral system. The question is, if turnout is affected by polling station location, to what extent can the public indicate where they believe polling stations should be situated?
We know that parish authorities very often make representations to local authorities to secure the location. Also, other organisations within individual communities —schools, church groups, women’s institutes and all kinds of voluntary organisations—sometimes make representations. I have found over the years that very often there is indifference within local authorities to the protests of people who object to the location of polling stations, particularly to where they are inconvenient. I remember that, in my then constituency in the county of Cumbria, on occasions I would go to the local authority and say, “Look, provision here isn’t satisfactory”. Very often the local authority was very sensitive, and changes would be made.
I now live in Maidenhead and when I voted on the last occasion I had to drive a tremendous distance, even within the town, to go and vote. When I got there, I found the polling station split into various sections, all of which received electors coming in from various parts of Maidenhead. I believe that is wrong. The question is: what chance does an individual elector have to influence decisions on the location of polling stations?
My view is that there should be some mechanism that is much more substantial than current arrangements for allowing individual electors and organisations to influence the location of these stations, particularly as their location affects turnout, which is now one of the major issues in Britain’s elections. We are seeing progressive reductions in turnout in both general and council elections, so we must find ways of addressing that problem. One way is to increase the number of polling stations. I hope that, in replying to this debate, the noble Lord might comment on this problem which I think arises in many communities.
My Lords, I shall be brief, but I want to raise an issue that has troubled me in the past.
The noble Lord will see that the form for a postal vote—form 2—is prescribed on pages 60 and 61 of the Bill. I should say that he might need some advice from his civil servants because I have never had a clear answer to this question. The form requires the person who wants to use a postal vote to fill in the boxes set out in the form. After the individual has filled in their date of birth in one place, a box is provided for the voter’s signature. Next to that box, it says:
“(voter’s signature) IMPORTANT—Keep signature within border”.
That has always troubled me because many people who vote by post are actually old and infirm, and I have never been quite sure what happens if their signature goes outside the box.
In a sense this is not a minor point because I wonder whether that means that the vote may not be counted, which is what happens if you make other mistakes or put wrong entries on the form, or whether it simply means that the signature may not be able to be read by electronic means. I have always assumed that the reason for keeping the signature within the box is so that it can be read electronically. That might not be right, so if it is not, I am not sure why it is so important for the signature to be kept within the border.
I emphasise the point because I am thinking of the comments made earlier by the noble Lord, Lord Low. I know that you can get a dispensation for this and you do not have to vote this way, but for elderly and infirm people, or for those whose vision is not as good as it was, there is a real problem about staying within the box—indeed, I have been known to stray outside the box once or twice in my career, but not too often.
Again, I know that the Minister may have to take advice on this, but what happens if a voter filling in a form for a postal vote does not keep the signature within the parameters of the box? Is the problem simply that the signature cannot be read electronically but the vote will still be counted because someone will read it manually, or does it mean that the vote will not be counted? Obviously this question does not just apply to this form, but to others as well.
My Lords, I agree strongly with the comments made by my noble friend Lord Campbell-Savours. While it may not be appropriate to deal with the issue in this Bill, the provision of an adequate number of polling stations ought to be of great concern to the Government. I am lucky because the polling station is in the street where I live, but that is not the case for a lot of people, who have to travel many miles to get to their polling station. The Government ought to look at that problem. At some point in the future—obviously not now—there is a case for a proper revision of electoral law in this country so that it can be brought together for the production of some sort of consolidated Bill.
My Lords, I speak in the debate on whether Schedule 2 should stand part of the Bill not from a passionate objection to anything in the schedule but as a means of impressing on the Leader of the House the importance of these paragraphs. This is the bit where we should be able to transcend party politics. This has been a closely fought part of our legislative process, but at the end of the day the reality is that, for the referendum to have real value and merit in the development of our constitution, people need to feel confident that it has been conducted in such a manner, and the rules of the legislation have been applied in such a way, that they can relax not only from a partisan point of view but from a citizen’s point of view. I urge the Leader of the House, who is a reasonable man, to look at these issues as someone who just wants a proper result for the referendum.
There is a strong case for all the parties represented in this House to get together to discuss these nuts-and-bolts issues. I remember with some pain Scotland’s 1979 referendum, which is an experience that I would not wish to repeat. Earlier I spoke to the noble Lord, Lord McCluskey—who, sadly, is not in his place at the moment—who was talking about some of the pressures that he experienced as a Minister in the Government at that time when looking at how the referendum should be run. There are no two ways about it: there will be huge divisions in every party. That means that the parties must be confident in the structures that exist.
One of the big problems we will face is that the people who are best equipped to run the organisational part of the referendum—the part that is not run by the returning officers—are party apparatchiks. Thank God, it is 30 years since I was a party apparatchik, but the noble Lord, Lord Rennard, is a party apparatchik par excellence, as is my noble friend Lady McDonagh. We all know that there are mechanisms that get people to vote, that inspire them and ensure that the true process of democracy takes place. To allow that to happen, we need the structures in place.
In opposing the question that Schedule 2 stand part of the Bill, I am asking the Leader of the House to convene a gathering of the major parties that will form part of the process. The worse thing that could happen is for us all to get up on 6 May or whenever it may be—we are beginning to learn that it may be somewhere around 10 May before we find out the result in Scotland—and feel unhappy and uncomfortable about the nature of the processes.
At an early stage of the Bill my noble friend Lord Boateng made a powerful speech about how this Parliament, the mother of Parliaments, is looked to by Parliaments around the world for its procedures and its respect for the processes of democracy that transcend all that is party political. I urge the Leader of the House to reflect on what my noble friend said on that occasion. At the other end of the world, in Egypt, there are people crying out for the kind of democracy that we take for granted. Here we have an opportunity, at the fag end of a Bill that has been difficult for both sides of the House, to say that our democracy is bigger than the partisan divides.
I ask the Leader of the House to consider these issues and to convene a non-partisan gathering of all the parties to see if there is a way forward.