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European Union Referendum (Voter Registration) Regulations 2016

Volume 773: debated on Thursday 9 June 2016

Motion to Approve

Moved by

That the draft Regulations laid before the House on 8 June be approved.

Instrument not yet reported by the Joint Committee on Statutory Instruments

My Lords, let me start by repeating the Government’s thanks for the broad cross-party support for this measure and to those who have worked so hard behind the scenes, in the Cabinet Office as well as in the Electoral Commission, to address the situation in which we find ourselves.

We all agree that the referendum is one of the most important moments in our democracy for over a generation, and it is therefore critical that as many people as possible have their chance to vote in it. The public’s appetite to vote was clearly shown on Tuesday night, when the “Register to vote” website crashed. As I said yesterday, in the hour before it did so, 214,000 people had applied to register—three times the previous peak, which was seen just before the last general election. This dark cloud of an IT glitch has a silver lining, as it was caused by a great surge of public engagement.

From early yesterday we discussed with the Electoral Commission the best course of action to address this unprecedented issue. Given its central role in running the referendum, the Electoral Commission called on the Government to introduce legislation to extend the deadline for registration, and this statutory instrument does that by extending the deadline to midnight tonight. The application deadline is set by legislation, so new legislation is required to allow electoral registration officers to accept applications submitted after the original deadline. This is a technical change specific to the EU referendum and therefore secondary legislation is the most appropriate mechanism.

We have acted quickly but responsibly. Working with the Electoral Commission we have carefully examined the options and have come to the most appropriate and proportionate response. The legislation we are debating now was laid before Parliament yesterday evening. We have had to proceed with some haste but have taken the time necessary to ensure that our approach is legally watertight. In its briefing to Parliament the Electoral Commission has recommended that Parliament approve these regulations.

What does this instrument achieve? Very simply, it will, as I have said, extend the deadline for registration by 48 hours to midnight tonight. This is achieved by shifting the publication of the final register to be used for the referendum to the third working day before the poll—Monday 20 June—rather than five working days as currently provided for. To ensure that all applications are still subject to proper scrutiny, the period given for objections to an application remains five days. Registration officers will still have the full five days to process applications and require applicants to provide additional information, if needed, to satisfy them that those applicants are eligible to vote in the referendum. We are making no changes to the necessary verification processes and the same standard of verification will continue to apply to applications made in this extended registration period. We are cutting no corners. We want to give those who want to register more time to do so, but in a way which ensures that applications are subject to proper scrutiny before people are added to the register.

These regulations make no change to any other deadline date associated with the referendum. The deadline for applying for a postal vote expired at 5 pm yesterday. This means that anyone who has not properly applied to register by that point and has not applied for a postal ballot will not be able to vote by post in the referendum. But anyone who registers now and does not want to vote in person at their local polling station on 23 June, or is unable to do so for whatever reason, can still apply to appoint a proxy. The deadline for a standard proxy application is unchanged by this instrument and remains 15 June.

The change to the referendum deadline will apply in England, Wales and Scotland. The issue we are seeking to fix is in relation to a failing in the online registration service. Online registration is currently available only in Great Britain. The registration system in Northern Ireland is different in a variety of ways. In particular, digital registration is not yet available there, so there is no problem to fix in Northern Ireland as no one there experienced an issue registering to vote on Tuesday night.

In light of the regrettable outage to the system on Tuesday night, since then we have worked hard to ensure that it is more robust and better able to handle large numbers of simultaneous applications. The capacity for the “Register to vote” website was doubled yesterday. It is now four times what it was for the 2015 general election. We have also developed a system to manage any particular spikes in activity. I am pleased that people have got the message that registration for the referendum remains open and are taking the opportunity to register so that they can have their say. According to the latest figures I have, some 300,000 applications have been made since 10 pm on 7 June.

Let me end by apologising for the system having failed and the disruption that caused to members of the public applying to register. Although we have acted as quickly as possible to address this, I reiterate the Government’s clear commitment to conduct a full analysis of what went wrong so that we can learn the lessons for the future. If there are ways to better manage such problems, we will make sure that we identify them. I repeat my thanks to noble Lords for their support for this measure. I beg to move.

My Lords, I will be brief, although I am tempted to go into a long diatribe about compulsory registration, which I think ought to be the case, as people would automatically be registered and would have to take themselves off the register rather than the other way round. That would be the best way of doing it.

What I am concerned about now, however, is registration for the postal vote. We ought to be extending it in the same way, to the end of tomorrow, because the original deadline to ask for a postal vote was 24 hours after closure of the registration process. Now there will be at least a full 24 hours—that is, today—when no one will be able to apply for a postal vote. I think that that is wrong and I hope that the Government will look at it again and consider whether we might have postal voting for those who apply for registration today.

My Lords, I rise to support the Motion proposed by my noble friend. As your Lordships may be aware, although this is not set out in the Standing Orders, it is normal practice for your Lordships’ Secondary Legislation Scrutiny Committee, of which I have the honour to be chairman, to report on incidents such as this before they are considered by your Lordships. Clearly that was not possible on this occasion, but I have taken the opportunity to consult as many of the members of my committee as possible. None has raised any objection. I am therefore happy to say to my noble friend that I approve of what he proposes and that my committee has given its informal approval for that process. These are what, in other contexts, we have come to call exceptional circumstances. They clearly apply in this case, and I approve of my noble friend’s proposal.

My Lords, first, I thank the Minister for his kind words yesterday about my knowledge and interest in this area. I also ask him to convey my thanks to the Minister for Constitutional Reform for his most helpful recent letter which was also copied to my fellow officers of the All-Party Parliamentary Group on Democratic Participation. As the Minister will know, we are discussing with his colleagues our recent Missing Millions report, trying to tackle some of the longer-term problems which have been highlighted this week.

I want to say from these Benches how grateful we are to the Government for acting so expeditiously and properly to ensure that the problems with online registration did not result in people being disenfranchised. Today’s Daily Express headline suggesting that allowing people to vote is somehow “rigging the system” is at least as ridiculous as any of its conspiracy theories concerning the late Diana, Princess of Wales.

Some 242,000 people applied to register to vote yesterday, and more will do so by midnight tonight. But the problem that I raised with the Minister yesterday is that these people were not able to find out easily whether they were already registered, and many of them were. The problems of trying to get people registered at the last minute are the problems that arise from the weaknesses in the system, which have led to the general problem of under-registration. Yesterday, the Minister responded to my point that we really need an online system in which people can easily check whether or not they are already registered. He expressed concern about the creation of a national database to facilitate this. He said that,

“we must guard any solution which results in whole swathes of data unnecessarily being held centrally”.—[Official Report, 8/6/16; col. 751.]

But does he not have concerns that all the major political parties, including his own, already have such a database? All the political parties are entitled to copies of the electoral register in electronic format and they can either aggregate that information or work with any of the credit agencies which also legally have full access to the electoral register. So there are already national databases showing exactly who is on the electoral register.

While there may be some confusion over addresses appearing on those registers in different formats, it should not be hard, for example, for someone to supply their name, postcode, national insurance number or other identification to see whether they are already registered. I raised this issue today with the Electoral Commission. I quote briefly from its email, which is most helpful on this issue. On the question of an online register and checking whether someone is already registered, it says:

“This is a recommendation that we continue to make to Government, including in our February 2016 report, after we received feedback from Electoral Registration Officers, and from electors themselves, that this would be a helpful service. You might already be aware that similar facilities are already offered to voters in other comparable democracies, including Australia and New Zealand”.

Therefore, it seems to me that it would not be too difficult a problem for us to address. We know that in total there may be around 7 million people missing from the registers, and 4 million of them may be young people. I asked in a recent debate why we do not make the electoral registration process part of the student enrolment process. The Minister said that it had been piloted successfully in Sheffield and Cardiff. As it has been piloted successfully there, why can we not roll it out across the whole country? We could make it a universal provision. I have also been pressing, as have many Members of the House, for us to adopt the Northern Ireland model of registering 16 and 17 year-olds as part of citizenship classes at school. The Minister told me that many electoral registration officers are already working with local schools and colleges in their area—but why not all of them? The excuse that Northern Ireland does not yet have online registration is no reason at all for not spreading successful good practice in registering young people across Great Britain.

Finally, I ask the Minister to clarify an issue in the Explanatory Memorandum to this statutory instrument. It states that,

“the Law Commission is currently undertaking a review of electoral law in the United Kingdom and expects to present its recommendations to Government in 2016”.

However, the Law Commission published its interim report on 4 February and made many sensible recommendations for tidying up and modernising our election laws. I have since then been asking for the Government’s response to what the Law Commission said, as the next stages require the Government, instructing parliamentary counsel, to draft the Bill required. The Electoral Commission, I might add, is also extremely keen that this happens. So, what is the Government response to the Law Commission’s report?

My Lords, I rise to support the Motion put forward by the Minister and to commend the Government and the other House on ensuring that full public engagement can take place at this time. I believe that this surge was a result of the just-in-time generation being able to do things at the last minute. We probably have a lot to learn from that. It will be interesting to look at this issue—if one is able to define the 300,000-odd people who elected to register in the last 24 hours. Without this statutory instrument we would be denying the basic human right in a democracy, such as the UK, to vote on such an important issue.

My Lords, I rise to ask the Minister to clarify one or two things, and to make one or two observations, following the comments of the noble Lord, Lord Rennard. One is tempted to remind ourselves that the words “IT project, success and Government” are not often used in the same sentence. This might be yet another instance of that, although, having said that, I think that the capacity installed was pretty substantial. That takes me to the point made by the noble Lord, Lord Rennard, that, after the event, we will discover that a fair number of the people who were trying to register were already registered. Had that facility been available they would not have been overloading the system. As I said, we will not know the answer to that for several weeks, until the analysis has been done.

On my specific questions, first, are the returning officers fully okay with and accepting of the new timetables? I assume from what my noble friend Lord Bridges said that they are, but it would be appropriate, given the increased workload that they will face over a shorter period of time, to have confirmation that not only the Electoral Commission but the returning officers are satisfied that they can cope in the circumstances.

Secondly, and I do not expect an answer specifically relating to this at this point, when the specific regulations were debated in Committee I raised the opening of postal votes. I was given an assurance, although I have not checked Hansard precisely, that these would not be opened until the close of the poll because there were recognised implications for the markets around the world. I think that that was the assurance I was given. Rumours are going round about information emanating from the opening of postal votes already. I therefore ask the Minister to confirm with the Electoral Commission and with the returning officers that they are following due process as set out in the legislation and the regulations.

My Lords, I also support this legislation. I particularly endorse what the Minister said. Whatever position anyone takes on the European referendum, I hope everyone can agree that it is vital that everyone who is eligible to vote should be able to do so on this existentially important issue and that registration is the key to this. This is necessary and important legislation. I congratulate the Government on how swiftly they realised this after the debacle of online registration on Tuesday night and how quickly they acted on the wise advice of the Electoral Commission.

I also send my congratulations to Ministers and officials, who have acted with impressive speed in bringing this statutory instrument before your Lordships’ House. We now know that at least this part of the system works. I am also grateful to the Minister for the courtesy and consideration he showed to me in talking about these issues this morning.

I do not want to hold up the passage of this statutory instrument. It is important that it passes as quickly as possible. There will be a time to hold the Government systematically to account for their stewardship of the electoral system, but now is not the time. We have already heard a number of very important contributions in this short debate. I am sure that the Minister will take them away and reflect on them, as he has pledged to do.

It is important to determine whether the Government have now recognised that, while this legislation is necessary, it is not sufficient on its own to put right the problems experienced on Tuesday night. Practical delivery now rests with the Electoral Commission, but unfortunately, in my exchanges with it over the last few days, it seems to believe that because it has been doing a good job in securing increases in registration—it has been doing a very good job—then that is good enough. But when millions and millions of British citizens who are eligible to vote still cannot because they are not registered, and when the Government have been repeatedly warned of the dangers of their approach to electoral registration and disenfranchising people in this way, then good is not good enough. If higher levels of registration had been achieved over time, as the Government and the Electoral Commission have been repeatedly urged by many people to secure, the surge in applications that led to the problems on Tuesday night might well not have happened, at least on the scale that disrupted the system so badly. In these circumstances, an attitude that good is good enough is not acceptable.

Yesterday, the Minister reassured your Lordships’ House that he was not complacent about what happened and today we have heard that he wants to learn the lessons from it. To demonstrate that, would the Minister say what the Government have done since yesterday to persuade the Electoral Commission, providing any assurance of necessary funding, that what happened on Tuesday night created a new situation where a new communications strategy was necessary to ensure that everyone with a potential interest was told that registration is still possible until midnight tonight and how to do it? Finally, will he say what action he took, following his answer to me yesterday, to explore how social media could be used as part of such a communication strategy?

My Lords, I add my general welcome to the statutory instrument before us today. It is absolutely essential and I am pleased that the Government acted so quickly to remedy what was clearly a wrong. I hold no truck with those who criticise this, or even try to allege some kind of conspiracy whereby the website was crashed on purpose—that is absolutely bizarre. Clearly, it is right that as many people who have the right to vote are able to do so. That is crucial.

We do not yet know the reason why the crash happened. As the noble Baroness said, I think part of it will be down to those from the last-minute generation. It might also be that some people saw others in their household receive their polling cards and, realising they had not got one, wanted to go online. I would also like to think that the TV debate excited passions about the issue—but I suspect not. That is something to note in future.

I wish that this measure was not necessary and I appreciate that there was unprecedented demand on the night. That is generally accepted. However, it seems strange that there was no back-up. During the course of the website being down, it was still flashing across the TV and information was still going out saying, “Go on to the website and register now”. That will have exacerbated the problem. There was a failure of process somewhere along the line. Now is not the time to look into that, but I would like assurances that it will be looked at in the fullness of time.

The noble Lord said that no one from Northern Ireland was unable to register on Tuesday evening. How does he know that? It seems clear that, because Northern Ireland already has a form of IER, nobody was not on the register because of the transition to IER. I am just curious: how do we know that nobody from Northern Ireland tried to register on that evening?

The noble Lord, Lord Hayward, mentioned electoral registration officers. This now puts additional pressure on them. The reason for the deadline of midnight on Tuesday was to enable EROs to process all the applications. What consultation has there been with EROs and with the Local Government Association?

The Minister would think me remiss, and that I had gone soft in my old age, if I failed to raise with him an issue I raised yesterday—it seems longer—individual electoral registration. Against the advice of the Electoral Commission, the Government forged ahead with it. The Electoral Commission sent briefings to everyone in your Lordships’ House making it clear that it could not be certain that, if everybody had not individually registered by the cut-off date specified by the Government in previous legislation, there would not be people entitled to vote who were knocked off the register. Clearly, the Electoral Commission was right and the Government should not have pressed ahead. We would not be in the position we are in now if the Government had not forged ahead against the advice of the Electoral Commission. We all recognise that that measure passed only narrowly in this House. One reason the Government gave for doing so was that the boundaries review was dependent on the cut-off date being December 2015. Can the Minister tell the House today—if not, I am happy for him to write to me—how many people have been added to the register since that cut-off date? That is quite significant and would indicate whether the Government were correct to choose that cut-off date, or acted with undue haste.

At the time, the Government basically said that the names being knocked off the register were really a matter of fraud. It may well be that it was not fraud but just people who had not responded to the, in many cases numerous, requests. I doubt that everybody who was not individually registered had the nine communications and contacts that the noble Lord spoke of, but there were numerous requests and people still failed to respond. However, that is life and people do not respond to every request they get. These things can be quite difficult.

If the noble Lord can address those points, that would be helpful. As I say, we support this measure. It is essential on an issue such as this that everybody who is entitled to vote does so. I am encouraged that the Electoral Commission is now predicting an 80% turnout on the poll on 23 June. I just hope that the Government are looking at that to make sure they are geared up for it. I remember high turnouts in 1997, when some polling stations were unable to cope and closed their doors before some people had managed to vote. I hope that can be looked at to show that once people have got over the hurdle of registering, they will be able to use their vote on the day.

My Lords, I begin where I ended and repeat my thanks for the widespread support for this measure. Obviously, none of us wish to be in this situation but, that said, we are where we are.

I shall try to address as many of the points that have been raised as I can. If I fail to address all of them, I will obviously write to noble Lords. The noble Lord, Lord Maxton, asked about extending the date for postal votes. I am told that to do so would compromise the timing of returning such votes. I am extremely grateful to my noble friend Lord Trefgarne for what he said about the scrutiny of this SI. We are obviously in an unprecedented situation and I thank him for his support.

The noble Lord, Lord Rennard, and my noble friend Lord Hayward both raised the issue of duplicates. The noble Lord, Lord Rennard, knows a great deal about electoral matters, as does my noble friend. I do not want to get into a deep rabbit hole now but, as I said yesterday, we are considering ways in which the IER Digital Service can be enhanced. I note what the noble Lord said about these points. I am sure that we will continue to debate these matters further. The duplicates issue is one of the things this whole saga has thrown up. We need to look at it as part of the lessons learned process. I absolutely heed the points he made about the experience we have had so far. Attainers is one of these issues to which we come back again and again. I hope he will forgive me for saying that I need to get back to him on the Law Commission point. I am sorry that our minds have been somewhat distracted over the last 24 hours or so. I cannot give a full answer on that.

My noble friend Lord Hayward and the noble Baroness, Lady Smith, referred to working closely with EROs. We have been working extremely closely with EROs. As I said yesterday, we will certainly honour our commitment to cover reasonable costs. We are very grateful for their hard work. We will continue to remain in touch with them as time proceeds.

I will need to get back to my noble friend on the specific points he raised about postal votes. However, I can confirm that postal votes are opened only at the close of play of the referendum.

The noble Lord, Lord Wills, asked about promoting and communicating the decision. I thank him for the time he gave me this morning to discuss this matter. I need to remind your Lordships that obviously, the Government are prevented from publishing material that is,

“designed to encourage voting at the referendum”,

by Section 125 of the Political Parties, Elections and Referendums Act 2000. As the noble Lord knows—I mentioned it to him this morning—that provision obviously does not apply to the Electoral Commission. Since this morning, I have been in touch via my officials with the Electoral Commission, which obviously—although I put it on record again—is an independent body. I am assured that it is taking several steps today to make the public aware of the extension to the registration deadline. I have a list of things that body is doing: for example, promoting the message across social media; sharing communications and messages with regional counting officers; continuing its paid advertising promoting the EU referendum; and pointing people to the About My Vote website. The proof of the pudding will obviously be in the eating. Before I rose to speak, I looked at the number of people who are registering. That is running at about 2,000 who are online now, as far as I can see. Therefore, it is clear that the message is continuing to get out. We shall see how things progress during the evening and when the debate takes place this evening.

I am sorry to intervene on the Minister but I want to check a point. It does not affect support for the regulations in any way, but he said that postal votes would definitely not be opened until after close of poll. In most elections there are two stages and, in local and general elections, the postal votes are opened before the close of poll for verification that they are valid but are not counted until the close of poll. There are numerous reports of postal votes being opened as they come in, at the verification stage. If the Minister could check that point it would be helpful.

I will certainly check that point and I am sorry if I have created any confusion.

The noble Baroness said that she was surprised that there was no back-up with regard to what happened. We are very clear that lessons need to be learned regarding the technology and the legislation, and what steps might need to be put in place were this kind of thing to happen again. The noble Baroness is absolutely right.

I may have misunderstood the noble Baroness’s point, but it is my understanding that people in Northern Ireland cannot register online. As regards how many people have been added to the register since October 2015, I will need to come back to her. We are not in a position to say right now, as there have been those registering in the last few days and we do not know whether those applications have been fully processed or how many duplicates there have been. She will forgive me for not going down the other rabbit hole of rehearsing all the arguments over IER and carry-forwards. I have a lot of brief that I could entertain your Lordships’ House with on this, but I simply say that I disagree with her position, I am sorry to say, on that point.

The noble Baroness also raised the very valid point of whether, given the considerable—and very welcome—upsurge in public engagement in the referendum, there will be sufficient resources at polling stations on the day. The Electoral Commission’s guidance for counting officers at the referendum makes it clear that:

“Voters who at 10pm are in the polling station, or in a queue outside the polling station, for the purpose of voting, may apply for a ballot paper”.

The commission’s guidance also states:

“Good planning and flexible staffing should minimise the risk of there being queues at polling stations”.

The guidance advises counting officers to,

“ensure that polling station staff are monitoring turnout throughout the day and providing progress reports”

to polling. This is obviously a matter for the Electoral Commission, but my understanding is that it has taken steps to prepare for this.

I have just been alerted to the fact that postal votes are opened but not counted. I think that is the point that the noble Baroness was raising. I thank your Lordships once again for their support.

Motion agreed.