Examination of Witnesses (Questions 140
- 150)
TUESDAY 2 JUNE 1998
PROFESSOR ROBERT
BLACKBURN AND
DR DAVID
BUTLER
140. If any civil servant condoned or turned
a blind eye to this they could be sent to jail? What would the
offence be?
(Professor Blackburn) It would be an electoral offence.
141. It would be a serious offence. Punishable
by jail?
(Professor Blackburn) The penalties are set out in
the Representation of the People Act.
Mr Winnick: I do not suppose Peter Wright would
be worried about breaking the law.
Mr Singh
142. Could I just say on voter impersonation
that I think we might be understating the problem. I am certainly
aware of grumbles and complaints about voter impersonation. There
is an inquiry going on in Halifax in St John's ward into voter
impersonation and with a low turnout and people winning by 37
votes or 50 votes, I think it can have an impact on local elections,
maybe not General Elections but certainly local elections. It
is something we need to do something about in terms of the identity
of voters. How do you feel about that?
(Professor Blackburn) If a problem arises, voters
should be required to produce identification when they go to vote.
(Dr Butler) They are in Northern Ireland. I hate the
idea because it is rather cumbersome. What is ID? What do people
carry? Obviously an enormous number of the problems you are talking
about would be simplified if we did have identity cards card as
most countries do. Obviously with smart identity cards with photographs
on all these problems would be enormously simplified but civil
libertarians would not be happy about it and one understands why.
(Professor Blackburn) I think it may become necessary
to produce some ordinary form of identification such as a passport
or driving licence, and it would not be an extra-ordinary or objectionable
thing to have to do.
Chairman: Finally, an Electoral Commission has
been mentioned at various stages in our discussions. Perhaps Mr
Howarth can ask some questions specifically on that part.
Mr Howarth
143. You are both pretty strongly supportive
of the concept of an Electoral Commission. Dr Butler in his submission
says that the role of a Commission could range from "a comprehensive
mandate to review and administer every aspect of electoral administration"
to an "independent advisory body, available to report on
all kinds of electoral problems." Can I invite you to tell
us where on this Richter Scale of responsibility you would like
to see such a Commission operating?
(Dr Butler) Some of it is a question of administrative
negotiation. On the whole the electoral agents profession and
registration officers are rather frightened of central employment
and therefore I think initially I am on the minimalist side. How
far they should take over the responsibility that the Home Office
exercises I am not clear. I think, though, that I would not want
them to start getting involved except as an appeal court so to
speak in local electoral administration. My overwhelming feeling
is that I want a body there permanently to monitor the fairness
of elections, to give quick judgements on things, to recommend
to Parliament regulations or new laws that would be needed to
cope with constantly changing situations and of course to deal
with electoral registration of parties and this sort of thing.
So on the whole, if it got going, I would like to see it start
as a small body. It might expand its functions if it was seen
as convenient to do so, but for the moment I want it to be there
as an Electoral Commission and also as a Referendum Commission
if we have referendums. In terms of fair play we want an Electoral
Commission to deal with that sort of thing. This can be primarily
at an advisory level with a very small staff and not a grand quango.
I must say I have been very impressed by Australia and India.
I have been to the last five elections in India and the last fifteen
in Australia and the Electoral Commissions have been extremely
good at providing a guarantee of fair elections and for making
suggestions for changes in the regulation and operation of things
and they have actually done it because they have had comprehensive
administrative responsibilities. On the total scale I do not think
there is any need for us to go from our present stage the whole
hog to the Australian or Indian level of experience.
144. Professor Blackburn?
(Professor Blackburn) Yes, if an Electoral Commission
or Commissioner comes about, as I think it will, the practical
impetus behind establishing it is likely to come about as a result
of the statutory reforms of political parties and political finance
which for example will need some body to be receiving the parties'
statutory accounts each year.
Chairman
145. It is a possible outcome of the Neill Committee,
is it not?
(Professor Blackburn) Yes, the driving force is going
to come from statutory reform of parties and their financial affairs
and possibly also from recognition of the need to harmonise Boundary
Commission rules and procedures, particularly so if there is to
be a reduction in the number of parliamentary seats as a result
of changes flowing from the Jenkins Commission's report on the
voting system. We need to consider how the various inquiries now
taking place on electoral matters interlock—the present
Home Office inquiry into electoral procedures, the Neill Committee
on political finance, the Jenkins Commission on the voting system,
and this Select Committee inquiry. How much bigger can the House
of Commons get? 659 MPs and constituencies are really too many.
Why not take the opportunity to reduce the number of 500? If there
is to be a party list element in a new voting system, then there
is certainly going to need to be a radical redistribution of parliamentary
seats. Then there is the whole interrelationship of Scotland,
Wales, Northern Ireland and England, and the question of regional
representation at Westminster. So I think boundary review is going
to be a big issue which may well be entrusted to a single Electoral
Commission, to be included among its other functions including
the regulation of party and electoral finance. The full range
of responsibilities and work the Commission might undertake I
have identified in my memorandum. To my mind perhaps the most
useful work of the Commission would lie in its function as an
advisory body on electoral law reform matters, providing a politically
independent source of initiative for improvements in our electoral
law and removing anomalies. Secondly, I think it should have an
education and information role. At various times this morning
we have thought it would be useful to have facts and figures about
certain types of electoral activity. There is no proper clearing
house for electoral information and the Electoral Commission could
perform that function and help buttress public educational work
in the area of the working of elections generally. The third and
final function I would draw attention to here is a regulatory
role over fair electioneering practices, including a limited adjudicatory
function over General Election campaigning itself which I referred
to earlier on this morning. This raises the bigger issue of how
electoral litigation as a whole is going to be resolved in future.
Times are becoming more litigious generally in any event. But
with the arrival of new electoral laws governing political finance
and political parties the establishment of a more sophisticated
structure of enforcement and adjudication will become almost essential.
The present election petition procedure is too expensive, cumbersome
and daunting to cope with all election law adjudication in the
21st century. We need to re-think this whole area and an Electoral
Commission could play an important part in this.
Mr Howarth
146. May I put it to you that although Dr Butler
soothes us by saying his intention is it should be minimalist
he goes on to refer to a wide range of functions that it could
encompass. He acknowledges it might expand, a rather nice phrase.
I think Professor Blackburn described then an organisation which
would be extremely powerful with power concentrated in very few
hands. How do you respond to the argument that at the present
time the power over these various matters is divided between the
Boundary Commission, the proposed Registrar for parties, the broadcasting
authorities, and the House itself? Is this not a rather better
way of dealing with these matters rather than concentrating them
presumably with a huge bureaucratic underlay to deal with it?
(Professor Blackburn) I agree in part. I think there
is a lot of work involved and it is an administrative matter how
you want to structure this. The important thing, as far as I am
concerned, is that these functions are carried out. I think the
argument that it should take on a Boundary Commission review is
not a strong case for setting up a Commission per se. I
think the Boundary Commission structure needs to be overhauled
but it could be one function being carried out by one agency.
I think the value of an Electoral Commission lies in these areas
which I have just indicated and to my mind one of the greatest
challenges to the future regulation of elections and electioneering
is protecting the quality of political information fed to the
electorate through the propaganda of the parties transmitted through
the media and via various modern forms of mass communication.
Again, we need some independent agency acting as some kind of
impartial umpire to control future electioneering propaganda.
This is also associated I think with referendums. If, as looks
likely to be the case, they become part of the British political
landscape I think that strengthens the case for having an Electoral
Commission which has some hand in and supervision of referendum
campaigns.
(Dr Butler) I do appreciate, Mr Howarth, the anxiety
about some kind of giant quango operating in this way. Obviously
it would be taking over some functions that are actually carried
out now in other ways. It would not actually add to it. If it
did what the Boundary Commission does it would not add to the
total bureaucracy up there. Obviously it would have to have a
very high standard of people appointed to it and it would have
to bend over backwards to preserve its neutrality. It would have
to be a great deal more neutral than the Home Office is at the
moment and a great deal more efficient. It would have as its sole
function that of preserving decent democratic elections. I do
not envisage it actually getting very grand. I do not think I
am frightened of some power crazy group actually dictating things.
It has not been the experience of other countries which have had
Electoral Commissions. They have not been seen as a threat; they
are just servants of the state. The danger of their growing big
and bureaucratic is there, as in many things. It would be so much
better than the status quo and it would save a lot of the troubles
we are all now looking into.
147. What you say in your submission is that
the electoral system, although admired, has many rough edges that
could be and should be smoothed out. I think we agree with that,
I certainly agree with that. While you do make a case for strengthening
some of these functions I am worried about the concentration of
power. You say this independent Commission would have to bend
over backwards to be neutral. We know what the Jenkins' Committee
is going to come out with because we know what the Chairman's
views are. We are under no illusions about that. Somebody has
always got to take the initiative. That is on the big side of
it. Can I put it to you as well in your paper you refer to redress
for abuse. You say there has been no challenge to a Parliamentary
election on the grounds of overspending or false accounting since
1969. It is not a huge problem. I note you go on to say: "Should
not responsibility for establishing that the result of an election
has been arrived at honestly and fairly be on the state and not
on the contestants?" You are going to open up this procedure
to a flood of disgruntled unsuccessful candidates who will use
your Commission as a means of obtaining redress for the result,
not for the unfairness or any perceived unfairness but for the
outcome of the election.
(Dr Butler) A separate point is who should pay for
petitions. The reason we have had so few challenges to elections
is the enormous cost and there is a suspicion about bringing a
petition; you may not be totally pure yourself—you may have
committed some minor offence and the whole thing might go down
the drain. It is not very satisfactory to have a situation in
which we turn a blind eye to things going wrong because the lawyers
are so expensive. If it is true that the recent Winchester petition
cost over £100,000 in lawyers' fees, you have got an unsatisfactory
world whereas I think quite often the questions could be dealt
with by a light-handed approach. At the moment we have nobody
except, thank God, this Committee which is sitting. I am delighted
you are here doing this inquiry and the other Howarth Committee
is going on looking into these things, but it is a one-off study.
I have been looking at these things for 50 years and in the last
ten years, with the coming of computers, direct mail, telephonic
advances and other things, electioneering has changed more than
ever before and the law is still 19th century law. We need somebody
whose job it is not just to monitor it once off, but to do so
continuously. Because new developments are coming, there is an
overwhelming case for a permanent Electoral Commission which is
there to see that our electoral system and electoral law is continuously
up-to-date.
Chairman
148. On that note I think we will conclude,
gentlemen. Can I ask you before we do are there any subjects we
have not addressed in our long tour of the horizon which you think
we ought to have touched upon?
(Dr Butler) Nothing I wish to push to you at the moment.
I think there are quite a lot of factual things on which your
questions imply you are unaware of data which I am pretty sure
exists. I can certainly help if I was required to on sources on
these matters. It is not worth arguing about verifiable questions
of fact. There are quite a lot of verifiable questions of fact
in this territory. There is quite a lot of data.
149. Professor Blackburn?
(Professor Blackburn) I would have hoped that this
Committee might report in two stages: first, an interim report
to feed into the Howarth Home Office inquiry; then a second more
wide-ranging and comprehensive inquiry into the state of our electoral
law and administration conducted over a longer period of time.
The field of election law is vast, raising matters of major political
importance as well as administrative procedures of a more mundane
nature. I believe your inquiry to be important because simply
leaving policy in this area to the government is conducive to
minimal electoral changes actually being made which affect the
powers and political advantages of the executive itself. There
are a lot of antiquated electoral anomalies and matters of principle
which this parliamentary Committee might usefully be looking at.
But if I could finally select just one reform of election law
which does carry popular backing and probably also substantial
parliamentary support. This is our system of General Election
timing which is an extremely important matter in electioneering
terms and which clearly operates to the advantage of the government
of the day.
Mr Howarth: It did last year enormously.
Chairman
150. I think the alibi has just run out.
(Professor Blackburn) Well, some governments are doomed
in any event. The trick is to avoid those times when you are unpopular
so far as you can. I believe this Committee should examine the
case for fixed intervals between general elections.
(Dr Butler) A fixed election leads to permanent electioneering
because, after all, you know when the date is going to be and
you can start electioneering quite a long way ahead. The slight
advantage is that people do not want to waste their power prematurely
with the fact you are going to have a given election date.
(Professor Blackburn) Our current system of general
election timing is patently unfair on opposition parties and maximises
the political advantage possessed by the governing party of the
day. Perhaps I could add that the subject of election timing is
in any event likely to arise by implication of other reforms on
the horizon. I do not know whether the Jenkins Commission is thinking
about this but the consequences of any new voting system that
militates away from the great deviations from proportionality
that we suffer from at the moment is going to make hung Parliaments
more likely and this then is going to expose the rules governing
when an early second general election can take place as well as
the conventions on government formation after an election. Those
conventions at present are not very satisfactory. For example,
if there is a hung Parliament, which party has got the right to
form a government? Under existing constitutional practice the
existing party in government is able to do so. If party A received
320 seats and party B got 290 seats but party B was the government
of the day they would have first chance, whereas most people would
think that the party with the most seats should have the first
opportunity at forming an administration. What I am saying is
that there are implications of other electoral reforms that need
to be considered and I think that this Committee should be considering
the wider picture and how the likely changes arising out of the
work of the Neill Committee, Jenkins Commission and the Howarth
Committee interrelate. Election timing is one important such matter.
(Dr Butler) I do not think the Electoral Commission
ought to be taking on that one. That is a much larger territory.
You are making one point I should I have made earlier and that
is multiplicity of authorities. It was absolutely monstrous the
other day when John Prescott announced what was to be a valid
or invalid ballot in relation to the London referendum. There
are six departments at the moment which have been involved in
referendums and the legislation dealing with elections and some
central co-ordination of this and what are the fair rules is most
desirous. I hope you could look into that.
Chairman: You are thinking permanently about
such matters but I am afraid our responsibilities are vast and
whilst we may visit the subject from time to time this is a brief
inquiry which will come to some brief conclusion possibly before
the summer although I do not know. Thank you very much, gentlemen.
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