Examination of Witnesses (Questions 80
- 99)
TUESDAY 2 JUNE 1998
PROFESSOR ROBERT
BLACKBURN AND
DR DAVID
BUTLER
Mr Linton
80. You could have it on Saturday and Sunday
morning?
(Dr Butler) That would be very expensive in terms
of polling clerks and all the rest of it. I think a provision
for some central advance voting place or something like that would
cope with the limited number of people who had objections. There
would be something of a howl whatever you do but I think it is
one idea worth taking on board.
81. What about harmonisation of polling hours
from 7 to 9?
(Dr Butler) I think it was an absurd thing Harold
Wilson did in 1968. I am told, this is just gossip, that following
a Speaker's Conference which had kept the hours as they were up
to that time, 7 till 9, Harold Wilson's agent had the theory that
Labour voters voted later and if you stayed open to ten it helped
the Labour Party. It probably was right at that time but nowadays
there is no difference. The exit polls show there is no partisan
advantage in being open 9 till 10. It means the election night
programmes go on and you have to stay up later in the night. I
see no reason whatever for that. We have longer polling hours
than any other country. If you check on hours of voting in every
other country they tend to be 8 till 8 or 8 till 7 and quite a
large number of countries stop earlier. I do not think you will
change turnout significantly. Only 4 per cent vote in the last
hour of nine to ten and they would vote earlier. Virtually nobody
would be prevented. I think it is a sensible economy to go back
to the old world and shorten polling hours as they are for local
elections. Now there are different polling hours for local elections
and national elections which causes a lot of confusion. On two
occasions, 1979 and 1977, you had local elections on the same
day as national elections.
Mr Winnick: Most of us know full well that only
one or two at most will be persuaded to come out after 9 o'clock.
Mr Linton
82. There is a general question about absent
voting. How do you react to the idea of absent voting on demand?
There is a case quoted here in the evidence which might be of
interest of the New Zealand experience when they sent out postal
ballots to everybody and the turnout went up from 31 to 60 per
cent.
(Dr Butler) The technical problem is the fear of abuse
which you could get. One knows about the old people's homes and
the like. It is not a serious major problem now but if you moved
to very large-scale absent voting that would be different. I do
believe that the prior voting provision is much more acceptable,
having a well-advertised number of local offices where within
limited hours you can cast a vote, not long in advance. You want
them to be exposed to the same campaigning and reacting to the
same stimuli but you could have postal votes cast in advance with
an advance voting facility.
83. What about choice of voting stations. Do
you think you should be able to vote not just in your own local
one but in whichever one is convenient to you?
(Dr Butler) That is of course normal in Australia
where you can vote anywhere in your constituency.
(Professor Blackburn) I think more flexible arrangements
should be made particularly if they accompanied the introduction
of compulsory voting.
(Dr Butler) It does delay the count. You have got
to square it and make sure people are not abusing the system and
voting in more than one place. It involves considerable extra
bureaucracy and certainly you could not get clean and final results
on the night in the way you do now if you had to do that kind
of elaborate checking.
84. Even with modern computer technology? If
you have a virtual register on the computer?
(Dr Butler) I do not know. Again, it is a technical
question I would not know the answer to. You will find anxiety
about abuse and the need to double check that people are not abusing.
It is worth getting some evidence from Northern Ireland. We have
an electoral law which is obeyed in this country. The traditions
are different in Northern Ireland. They have the same law but
the postal vote in the western counties of Northern Ireland is
much greater than the postal vote on the mainland and has been
consistently since postal votes were introduced in 1950. It has
just been consistently much higher. They have different conventions
about impersonation too in some areas of Northern Ireland. So
different rules are needed against abuse in different cultures
and I think it would be worth asking our Northern Ireland friends
what they think. This is one of the interesting things. For identification
at the polling booths in Northern Ireland they did change the
law so that you can demand a driver's licence or something like
that which we do not have on this side of St George's Channel.
(Professor Blackburn) I think the speed with which
the count is conducted is not an important factor to be taken
into account here and certainly should not be used to displace
any idea that there should be more flexible voting arrangements
in place if they are thought to be desirable to increase the turnout.
By the same token the longer the hours local authorities can keep
polling booths open on the day the better.
85. Coming back to early voting you mentioned
there should not be more than three or four days. In Sweden you
can vote in any post office in the country three or four days
before polling day including up to 11 o'clock on polling day.
If it is technically possible to do that, is that not one of the
benefits?
(Dr Butler) Nominations do not close until 12 days
before polling day, which gives two days for the returning officers
to check that you are not a criminal, then you have got to print
the ballot papers and distribute them so I am pretty sure there
would be legitimate administrative reasons, unless you change
the timetable of nominations, to say that you could not practically
set up the facilities for voting more than a few days in advance.
There is the argument that you do want people to make a collective
decision having been exposed to the arguments put forward by all
parties during the campaign. If we could all vote now for the
result of the election in 2001 is carrying that sort of thing
in absurdum.
86. Obviously one could change the period of
nominations. People who go off on a week's holiday for instance,
the classic case of people who do not vote, if you allow early
voting it would be useful to let them vote.
(Dr Butler) I think you are doing a lot if you allow
people to vote up to five days, up to the Saturday or Friday before
the Thursday. You are giving them really quite enough time—but
the screams of the local authority people would be considerable.
87. Voting in supermarkets and mobile polling
stations, do you think they are all useful things that can be
done?
(Dr Butler) No objection.
(Professor Blackburn) My personal preference would
be to keep polling booths as they are, but I suppose if there
was research indicating that people would vote much more that
way, then fine.
88. Voting by Internet, can you ever foresee
that? Or even telephone?
(Professor Blackburn) Personally I am not that keen
on electronic voting or electronic counting. Matters of such fundamental
importance should be conducted by human beings rather than machines.
(Dr Butler) It is worth mentioning that in the senatorial
by-election in Oregon recently they voted by post and the turnout
jumped significantly higher, although I do not have the exact
figures. That is worth looking at.
Mr Winnick
89. Before I ask you about names and party labels
can I thank you, Professor Blackburn, for drawing our attention
to the fact that people who have been Roman Catholic priests,
no matter how long they have ceased to be so, are not eligible
to sit in the House of Commons. You can be a candidate but you
are not eligible to sit. There is a glaring anomaly there which
should be put right.
(Professor Blackburn) Can I possibly intervene there
to ask whether you will be enquiring into the ease with which
one can stand as a Parliamentary candidate as part of your inquiry?
Mr Winnick: I would be very surprised if we
did not report on that.
Chairman
90. We are to some extent at the mercy of what
the witnesses think is important and what they do not.
(Professor Blackburn) Lest the subject does not come
up again, could I say that I believe that the law relating to
Parliamentary candidature should be codified. The two particular
aspects of candidature I have drawn attention to in my memorandum
are the most likely ones to be reformed first in the absence of
a more wide-ranging codification taking place. On the religious
discrimination I refer to perhaps it might be worth adding that
I think the irrational, illogical way in which clergy disqualification
laws operate at the moment in my view is probably in breach of
the European Convention on Human Rights which is going to be incorporated
shortly into UK law by the Human Rights Bill. If this or some
other official Committee does not recommend a change in this law
before long it is something that will have to be resolved before
the United Kingdom courts or in Strasbourg. The present situation
whereby the disqualification of clergy operates in a discriminatory
fashion between different faiths is no longer acceptable.
91. So had Bruce Kent been elected at Oxford
last time round he would have been disqualified?
(Professor Blackburn) Yes and I believe his situation
would have been similar to Tony Benn's in the early 1960s (when
he inherited a peerage) in creating a cause ce«le"bre
which led to a change in the law.
(Dr Butler) J G MacManaway in 1950 was elected in
West Belfast and was disqualified because he was a priest of the
Anglican Church.
Mr Winnick
92. If it applied to any other religion there
might have been a great outcry. If it had been somebody practising
as a Muslim priest or as a Rabbi you can imagine the outcry that
a relatively small minority were being persecuted and yet it applies
to the second Christian denomination in our country.
(Professor Blackburn) That is right. It operates in
a discriminatory fashion within the Christian faith.
(Dr Butler) The issue of disqualification will doubtless
come up next year if the Government carries through its proposals
to deny peers the hereditary right to sit and vote in the Lords.
Then presumably they should be allowed to vote and stand for the
Commons.
Chairman
93. They would be disqualified at present.
(Dr Butler) It appears so. I do not quite know how
the disqualification works. I think it is membership of the House
of Lords. Irish peers can stand and vote.
Chairman: Scots ones?
Mr Linton: But they are not Members of the House
of Lords.
Chairman
94. Professor Blackburn?
(Professor Blackburn) I simply wanted to draw your
attention to the material in my memorandum and the fact that I
go into greater depth on the law of candidature in my book on
The Electoral System in Britain. I deal with the voting
rights of peers in that book as well.
Chairman: Thank you. I do not think we have
spotted that. Mr Howarth?
Mr Howarth: Could I first of all apologise to
our visitors for being absent. I was dealing with the Naval, Airforce
and Army Discipline Continuation Order.
Mr Winnick: No discrimination there I hope.
Mr Howarth
95. No discrimination there, no. I had always
been under the impression that it was only Anglican clergy who
are disqualified from standing for Parliament on the grounds that
they are represented in the House of Lords by the bench of bishops
and that all the other faiths including the Roman Catholic faith
were entitled to stand. I am sure, Chairman, that is something
we ought to bring within the remit of this Committee even if,
as Professor Blackburn points out, it may not be a good thing
for acting clergy particularly from the major denominations to
court controversy within their own church by standing for Parliament.
If we are unaware of this in this Committee, presumably the wider
public is unaware?
(Professor Blackburn) I think that is right. When
I first started conducting research into electoral law back into
the early 1980s as part of my doctoral thesis on the dissolution
of Parliament, and more comprehensively in my book on The Electoral
System in Britain, I found that there were quite a large number
of subjects of electoral law that very few people including MPs
were aware of. I think the law relating to Parliamentary candidature
is a particular mess because it is so archaic and it stretches
back into our ancient common law with a large number of statutes
the origins of which came out of political circumstances which
bear little or no resemblance to today whatsoever.
Mr Winnick
96. Is not the situation actually worse than
Mr Howarth says? As far as anyone who has practised as a Roman
Catholic priest is concerned even though he may have decided not
to uphold the religion, become an atheist, got married (the two
are not necessarily linked) they would not under our law be entitled
to be sitting in the House of Commons even though elected?
(Professor Blackburn) Yes, that seems to be the state
of the law following the MacManaway case[1]
As I explain in my book on The Electoral System in Britain[2]
I believe the only way in which legally he might ever be able
to stand under existing law is if he successfully applied to become
a priest in the disestablished Church of England in Wales, because
the Welsh Church Act 1914 expressly states that an ordained priest
holding office in the Church of Wales can become an MP. But of
course this is an unlikely state of affairs for a former Catholic
priest.
97. When we come to the registration of political
parties, which is going to be debated very shortly, do you believe
that this is going to end the confusion over party names where
people deliberately describe themselves by their own name or they
have changed their name by deed poll or political party or both
so as to confuse the voters?
(Professor Blackburn) I think it is a beginning. I
have not had time to consider the Bill at length I am afraid so
I cannot give a full commentary on it but my first observations
of it are that I am not sure that the Companies Registrar is the
right location for registration to take place. I think in the
long term registration should be conducted through an Electoral
Commission. Indeed the whole future regulation of political parties
and regulation of political finance which is likely to come about
over the next few years following the Neill Committee recommendations
makes the case for an Electoral Commission precisely for this
type of purpose all the stronger. The other point about the Bill
of course is that it does not deal with names of candidates and
that is something that has got to be dealt with. Again I think
the best mechanism would be to have an Electoral Commission possessing
a limited adjudicatory function that could deal swiftly with problems
that arose during the nomination procedure, being referred to
the Electoral Commission by a returning officer.
98. But you are both in favour of ending a situation
which has occurred whereby certain candidates can deliberately
confuse the voters?
(Dr Butler) I think it has got to be done in some
central way. It is an impossible decision when the returning officer
has to make the determination. There was the case in the 1994
Devon Euro-election when the Literal Democrat was challenged.
The returning officer should perhaps have done something, but
returning officers do not want to be put in that position and
I think this does get around it. It is worth going back to the
origins of party labels. It goes back to Jim Callaghan as Home
Secretary in 1969 trying to solve the question of confusing labels
in GLC elections. You had four candidates in Wandsworth and two
Mr Pritchards from different parties, one got a lot more votes
than the others of his party. There was confusion between names,
and therefore six words of self-description were brought in. This
Bill seems to have incorporated the six words of self-description,
which doubtless you gentlemen applied to yourselves with slight
variations on the vote papers in recent elections. I do not like
the Registrar of Companies doing it. It raises some very delicate
questions. If you think of the title "Liberal" in 1931
when suddenly the Liberal Party divided into three: the question
was who would own the wreckage and would it be for the Registrar
of Companies to decide whether it was the Simonites or the Samuelites
or the Lloyd George wing of the party which had the right to the
title of the party? A judgement of Solomon may very often be needed
and would be needed in that sort of circumstance. I think you
need somebody who is really trying to think about the thing in
a necessarily semi-political way and an Electoral Commission would
have to do it. It is worth stressing that virtually every other
democracy does have an Electoral Commission and does have provision
for registration of party labels and modification of registration
of party labels. We have now got proportional representation in
Scotland and Wales and London, and we have got to have registration
of party names. The current Bill more or less seems to solve the
problem, but I do not think the Registrar of Companies is the
right person to do it.
99. Thank you. Professor Blackburn, you are
very much opposed to the concept of deposits. You consider it
is some kind of impediment to democracy and the right of candidates
to stand at election time?
(Professor Blackburn) Yes I am. I think people should
be free to stand as Parliamentary candidates if they wish and
there certainly should not be any financial disincentives to them
to do so. I think the way it has penalised smaller parties like
the Green Party has been fairly vicious when they have got something
legitimate to contribute to the democratic discussions taking
place at General Elections. The deposit did not exist earlier
on in our history. It was introduced in 1918 and I think it should
be done away with.
(Dr Butler) It was introduced when the election expenses
previously had to be paid by the candidates. Until 1918 there
was an actual fine for standing for Parliament. You actually had
to pay a substantial amount of money towards Returning Officers'
expenses. There were one or two frivolous candidatures during
the 1914 war which inspired them to put that £150 in. I could
not disagree more with Robert Blackburn on this. To stand for
Parliament is costing the taxpayer a certain amount of money in
terms of free postage and access to schools and the like and I
think it is necessary to have some threshold. It used to be an
eighth of the vote. I thought that was much too high. The only
other time I appeared before this Committee was in 1983 when they
were trying to set forfeiture at a 12th of the vote and I pointed
out that seven and a third per cent was an awkward figure, a 20th
(5%) was much more sensible; incredibly few major party candidates,
serious candidates, get between 5 per cent and seven and a third
per cent. There were people who got one and two per cent of the
vote. They also clutter up the scene. They raise one other matter
of election law which you are doubtless going to come to—broadcasting
and the restriction on broadcasts involve also the multiplicity
of candidates. The TV companies will not put on a programme when
you have Screaming Lord Sutch publicising his cause, you are impeding
democracy if you allow anybody to use this as an advertising gimmick.
(Professor Blackburn) But there are a lot of situations
where troublesome individuals cost the taxpayer and the country
a lot of money. We are talking about something extremely important
here, about who is going to be representing us in political office
and I do not think money should be used as the mechanism for weeding
out who are serious candidates and who are not. The mechanism
should be to determine whether that person has got any prima
facie popular backing and that should be done by the number
of persons nominating the candidate in my view.
1 In re MacManaway and In re The House of Commons
(Clergy Disqualification) Act 1801 AC [1951] 161. Back
2
21995, page 192. Back
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