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First Standing Committee
on Delegated Legislation
The Committee consisted of the following Members:
Chairman:
Mr. Peter Atkinson
†Burrowes, Mr. David (Enfield, Southgate) (Con)
†Davidson, Mr. Ian (Glasgow, South-West) (Lab/ Co-op)
†Davies, David T.C. (Monmouth) (Con)
†Djanogly, Mr. Jonathan (Huntingdon) (Con)
†Hamilton, Mr. David (Midlothian) (Lab)
†Harman, Ms Harriet (Minister of State, Department for Constitutional Affairs)
†Havard, Mr. Dai (Merthyr Tydfil and Rhymney) (Lab)
†Heath, Mr. David (Somerton and Frome) (LD)
†Linton, Martin (Battersea) (Lab)
†Miller, Andrew (Ellesmere Port and Neston) (Lab)
Penning, Mike (Hemel Hempstead) (Con)
†Price, Adam (Carmarthen, East and Dinefwr) (PC)
†Smith, Geraldine (Morecambe and Lunesdale) (Lab)
†Thornberry, Emily (Islington, South and Finsbury) (Lab)
†Thurso, John (Caithness, Sutherland and Easter Ross) (LD)
†Watkinson, Angela (Upminster) (Con)
†Watts, Mr. Dave (Lord Commissioner of Her Majesty’s Treasury)
†Williams, Mrs. Betty (Conwy) (Lab)
†Wishart, Pete (Perth and North Perthshire) (SNP)
†Wright, Mr. Anthony (Great Yarmouth) (Lab)
†Wright, David (Telford) (Lab)
Glenn McKee, Committee Clerk
† attended the Committee
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Tuesday 28 February 2006
[Mr. Peter Atkinson in the Chair]
Draft Representation of the People (England and Wales) (Amendment) Regulations 2006
4.30 pm
The Minister of State, Department for Constitutional Affairs (Ms Harriet Harman): I beg to move,
That the Committee has considered the draft Representation of the People (England and Wales) (Amendment) Regulations 2006.
The Chairman: With this it will be convenient to consider the draft National Assembly for Wales (Representation of the People) (Amendment) Order 2006 and the draft Representation of the People (Scotland) (Amendment) Regulations 2006.
Ms Harman: I welcome you to the Chair, Mr. Atkinson, and I welcome all hon. Members on both sides of the Committee. I apologise for my coughing. I am grateful that as well as having hon. Members from both sides of the House here, we also have my hon. Friend the Member for St. Helens, North (Mr. Watts) to assist us with Welsh matters while the Front Benchers are in the Chamber debating Welsh issues.
The regulations and order were laid before the House on 19 December 2005, and the Scottish regulations were laid on 26 January. Following consideration by the Joint Committee on Statutory Instruments, the original draft instruments were withdrawn to correct either inconsistencies in numbering or some technical issues, and were re-laid on 24 January 2006. The Scottish regulations were re-laid on 6 February. The Government are grateful to the Joint Committee for its assistance in these matters.
The draft Representation of the People (Scotland) (Amendment) Regulations 2006 replicate the provisions of the draft England and Wales regulations for the conduct of Scottish parliamentary elections. The regulations are the same as those for England and Wales except for some minor differences reflecting the electoral provisions in institutions in Scotland. The conduct of Scottish local government elections is a devolved matter for Scottish Ministers. I understand that they intend to introduce legislation before the combined 3 May 2007 elections to ensure consistency in electoral practice between elections in Scotland.
The measures in the draft National Assembly for Wales order replicate the provisions of the draft regulations for England and Wales and will apply to any by-election to the National Assembly for Wales called between now and the ordinary elections to be held on 3 May 2007. In time for the 3 May 2007 elections, my right hon. Friend the Secretary of State for Wales will undertake a further review of the 2003 Assembly elections to take into account changes to electoral practice introduced by the Electoral
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Administration Bill. The limited changes that he is making now will ensure that there is consistency of electoral practice in Wales in the interim period, and will correct an inconsistency between the current rules and schedule 7 to the Representation of the People Act 2000 by removing the requirement for applicants for an absent vote to provide a United Kingdom address for receipt of their ballot papers.
The Government are determined to ensure that everyone who is entitled to vote is on the electoral register. We went over that issue in Department for Constitutional Affairs oral questions earlier in the Chamber. The regulations deal with issues to ensure that no one fiddles the vote and that everyone turns out to vote, so they deal with the latter two of the three issues that we are concerned about.
I shall deal first with fraud. Everyone in every community in any part of the country is entitled to their vote, and to know that it is counted once they have cast it. Electoral fraud is extremely rare, but fraud in any area in any election, whether national or local, is a problem, because it undermines confidence. I commend the regulations to the Committee, and I very much welcome the guidance that was published yesterday by the Association of Chief Police Officers and the Electoral Commission, which was particularly directed at avoiding fraud in postal ballots in the forthcoming May council elections.
I would like to draw the Committee’s attention to four particular measures on fraud, which will come into effect before the May council elections. I shall also mention further provisions that will come into effect later through the Electoral Administration Bill, because it is helpful if the Committee can see the regulations on postal vote fraud in the context of the primary legislation that is also tackling fraud.
The anti-fraud measures in the regulations include the following provisions. Electoral administrators will write to everyone who has applied for a postal vote acknowledging receipt of their application and confirming the outcome, thus alerting people to false applications for postal votes on their behalf. When my bank sends me a cheque book, I receive a letter three days later asking, “Did you get the cheque book? If not, someone else has got it, so please let us know.” That is the sort of thing that we are now requiring electoral administrators to do. When somebody registers for a postal vote, they will thereafter get a letter to check that it really was them.
Secondly, postal vote applicants will have to explain why they want a postal vote to be redirected to an address other than that on the electoral register. A person cannot just ask for their postal vote to be sent somewhere else in case that person is harvesting fraudulent postal votes. Thirdly, administrators will get more time to check postal vote applications because people will have to apply for a vote 11 working days before the close of poll. Currently, that time is six days, and electoral administrators have said that that does not give them enough time to check up on anything fishy. Therefore, a person must apply for a postal vote 11 working days before the close of poll.
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Fourthly, electoral administrators will have clear new powers to check the signatures on postal vote applications against any other signatures held by the council. The councils have got all sorts of signatures from people applying for all sorts of things, and it will help the administrators to know that if they have got a signature on an application for a postal vote, they can match it. Those four important anti-fraud measures will come into force before the May council elections.
David T.C. Davies (Monmouth) (Con): I am grateful to the Minister for giving way and for the fact that action is being taken to combat postal vote fraud. Will she say whether steps are being taken to ensure that when multiple applications are received from one address, all those applicants are registered to pay council tax?
Ms Harman: In the primary legislation—the Electoral Administration Bill—there are duties and clear powers for councils to do data checking. The councils not only hold signatures, but they have information about who has applied for a student loan, who is paying council tax and claiming housing benefit, and who is registered for controlled parking. For one reason or another, councils have got all sorts of information about who lives at what address. If there is a suspiciously larger number of applications, to go on the register or to have postal votes, emanating from one address, the council can use those data-sharing powers to check that that number of people, with those names, are registered at that address.
Those four measures, which will be in effect by the time of the May elections, will be followed up by provisions that we have all debated long and hard during our consideration of the Electoral Administration Bill, which has now gone to another place for debate.
Mr. Ian Davidson (Glasgow, South-West) (Lab/Co-op): May I ask the Minister about the matching of signatures? She indicated correctly that, in many cases, councils will have signatures, mainly of legitimate applicants, but of course, where applicants do not exist, there will be no matching signatures. What will happen in circumstances in which no matching signature can be found and there is a suspicion?
Ms Harman: If there is a signature, and the electoral administrators try to match it with another signature, they might discover that they have not got somebody even of that name. If they have got somebody of that name at that address, but do not happen to have their signature, that might not be suspicious. However, if there is no signature or record of that name anywhere else in the council’s data to match the name on the application for a postal vote, they will have to perhaps go round to that address and knock on the door to find out whether anything suspicious is going on.
Alternatively, if there is a high level of suspicion, the administrators can call the single point of contact that has been established by the Association of Chief Police Officers, so that when there is suspicion of electoral fraud, the council does not have to ring a busy police station to be told, “We are out catching burglars and
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dealing with street robberies; this is nothing to do with us”. There will be a single point of contact and the police will then investigate if necessary.
Mr. Davidson: May I just press the Minister on the question of matching signatures? I do not know what lessons she has drawn from experience in Scotland not long ago when there was signature matching during a selection battle for a parliamentary nomination. It was found that a large number of signatures could not be matched and were ruled out. That caused a tremendous amount of uproar because many of the signatures were of people from ethnic minorities who perhaps signed their names in different ways on different occasions. There is obviously tremendous scope for both faking and unfair ruling-out. Has the Minister taken account of the circumstances in the Govan selection not that along ago?
Ms Harman: I have not taken into account the question of checking signatures for selection, but this will not be a question for ruling out postal vote applications. It will simply be a question of working out whether there is something suspicious about it and whether further inquiries need to be made. If there is not a signature with which it can be matched, it cannot be simply ruled out but might need to be looked into further. However, if it is discovered that the signature does not match the one on the application, it will arouse suspicion and will need to be looked into further because there will be a new offence of falsely applying for a postal vote. That offence might well have been committed.
Mr. David Hamilton (Midlothian) (Lab): Further to that point, quite a number of investigations could be taking place. Will local authorities get additional funding for them?
Ms Harman: Extra resources are going to electoral administrators for the additional work that they will undertake under the Electoral Administration Bill and to put these regulations into effect. Over the next two years £17.5 million will be distributed to local authorities for their new responsibilities to ensure that everyone gets on the register, turns out to vote and that nobody fiddles the vote.
In addition to the regulations to tackle fraud that I have briefly mentioned, there are 10 new measures in primary legislation in the Electoral Administration Bill to ensure that there is a much tighter control against electoral fraud and, in particular, postal voting fraud. There will be a new offence of falsely applying for a postal or proxy vote. There will be new secrecy warnings on postal and proxy voting papers to deter any attempt unlawfully to influence another person’s vote. Ballot papers will have a security mark and a bar code to enable quick security checks for stolen or postal votes. At the moment it is like searching for a needle in a haystack. If one is looking for individual numbers, one has to count them manually. If they can be fed into a machine to have the bar codes checked, it makes investigation much easier.
Mr. Jonathan Djanogly (Huntingdon) (Con): Will the bar codes be put in place for the May elections?
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Ms Harman: No. These measures are in the Electoral Administration Bill, which is currently being considered in another place. Basically the first four measures that I mentioned will be in place for the May council elections. I do not know how long the other place will take to look at the Bill, but we are not counting on it being in place before the May council elections. I am working closely, and my officials in the Department for Constitutional Affairs are working closely, with the election administrators as well as ACPO and the Society of Local Authority Chief Executives—SOLACE—to make absolutely sure that that there is no repeat of the problems we had in 2004. Council elections are more vulnerable to fraud than general elections because the smaller numbers involved make them easier to interfere with and influence. Such actions not only strip the person of their individual right to vote, but they undermine everybody’s confidence in the system.
There will be security marks on ballot papers. After every election a list of all those who voted by post will be published, which will enable individuals to check that their vote was counted and, in an investigation, the police will be able to check with any individual whether they did, in fact, vote by post or whether their vote was stolen. There will be a new criminal offence of supplying false information or failing to supply information to the electoral registration officer at any time. There will be a new strengthened offence of undue influence, which will make it easier to prosecute, even if the undue influence does not affect the way that someone votes.
The problem now is that to prove all the elements of the offence not only does it have to be proven that someone was told, “If you don’t vote Tory, I’m going to lock you up in the house and not let you out”, but it must be proven that the person would otherwise have voted Labour, not Tory. The new offence catches the criminality, rather than whether the outcome of the vote was changed, which will make it easier to prosecute.
The police will be given more time, because there will not be a 12-month time limit on investigating election fraud. Obviously, we want all election fraud to be investigated as soon as possible, but we do not want to lose an investigation and possible prosecution because of the 12-month limit, so that will be extended by the Bill. Voters will have to sign for their ballot paper at the polling station to deter fraudsters and electoral administrators will have clear new powers to cross-check applications to register to vote against any other information that the council holds—that is the data-checking point.
There will be a pilot programme to try out a new system of making people sign and give their date of birth before they get on the electoral register. Those are all primary legislative matters that will back up the issues covered in advance by regulations. I would like to thank the Association of Electoral Administrators, SOLACE, the chief executives and the police for all the work that they are doing. We shall carry on this work—with other political parties as well—up until May so that we all work together to ensure that there
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is complete probity in the elections. I would also like to thank Richard Mawrey QC, whose judgment on the Birmingham election fraud in 2004 exposed many of the problems that have been addressed in this new tough package of measures. I would like to thank him for looking through the regulations and advising us about them.
The specific measures aimed at improving access to, and participation in, the electoral process include allowing electors to request a replacement postal ballot paper anytime up to 5 pm on polling day; clarifying that a new set of postal ballot papers may be issued, not just the ballot paper itself; allowing electors to apply for a postal or proxy vote at the same time as registering to vote; leaving the deadline for applying for a proxy vote as six days before polling day but allowing an “emergency” proxy application in the five-day period leading up to polling day and up to 5 pm on polling day itself, with supporting evidence, in cases where an elector becomes physically incapacitated to vote in person; and standardising the polling hours of all local authority referendums and local authority mayoral elections from 7 am to 10 pm. Similar changes to extending polling hours for local government elections in England and Wales are being made in the Local Elections (Principal Areas and Parishes and Communities) (Amendment) (England and Wales) Rules 2006, laid before Parliament on 22 February, which will come into force on 24 March.
Mr. David Burrowes (Enfield, Southgate) (Con): I welcome the process dealing with greater access to voting. Regarding those who are suddenly physically incapacitated and wish to apply for a proxy vote in an emergency, would it not be appropriate to specify who should attest to that incapacity rather than leaving it to a nurse or medical practitioner, as suggested in the explanatory notes? Would it not be more appropriate to specify who those particular persons should be in the regulations?
Ms Harman: That is a point I had not considered, but I hope that inspiration might reach me before the close of my comments, in which case I shall be able to reply to the hon. Gentleman. Otherwise, I shall write to him.
Adam Price (Carmarthen, East and Dinefwr) (PC): With respect, I think the point was made by the Electoral Commission in its official response to the regulations. Have the Government had an opportunity to consider that?
Ms Harman: I am sure that we have, and it will emerge before I sit down, if the hon. Gentleman will just bear with me.
The regulations also allow administrators to collect securely postal ballots that are returned to polling stations before the close of poll. That applies when people do not post their postal ballot in advance, but drop them into the polling station, which a lot of people do. They will extend the collection of statistical information on postal voting for all local government elections in England and Wales.
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On changes relating to the access to, and supply of, the electoral register, it might be helpful if I explain that the provisions are not replicated in the Welsh order since there is no separate register for elections to the National Assembly for Wales. They are conducted on the basis of the same register as is used for local government elections in Wales.
The access to, and supply of, the electoral register changes that the Government are proposing will provide for the Environment Agency and the Financial Services Authority to be supplied with a copy of the electoral register in the same way as Government Departments, and for the security services to be given the full register for the full range of their statutory functions. Government Departments and other specific bodies will be able to use the full register for national security vetting purposes.
The National Library of Wales will be supplied with a full register as will the British Library. Public libraries and local authority archive services will be able to request a copy of the full register. Members of the public will be able to use out-of-date electoral registers held by public libraries or archive services for research purposes, after a 10-year period. In addition, local authorities will have access to the full electoral register for the purposes of conducting polls under the Local Government Act 2003.
The changes will also clarify that authorised users will have access to a copy of the full electoral register from a data processor without first having to obtain a copy from the electoral registration officer. They will remove the requirement for electors to give dates of birth if they will attain the age of 70 within 12 months of the rolling registration form, thereby bringing the provisions into line with those of the annual canvas.
An application must be attested and countersigned by a registered medical practitioner, a nurse registered on the register maintained by the Nursing and Midwifery Council, a Christian Science practitioner, the person registered under the Registered Homes Act 1984 as carrying on a residential care home, or the matron or other person in charge of residential accommodation. The application must be in writing, signed by the applicant. I hope that that deals with the query raised by the hon. Member for Enfield, Southgate (Mr. Burrowes).
Mr. David Heath (Somerton and Frome) (LD): I wish that the hon. Gentleman had not asked that question, because I was surprised by what the Minister has just read out, and I hope that she might have cause to revise that opinion. Without casting aspersions on a whole class of people, matrons have been part of the problem in the past, and there have been well attested cases in which undue pressure has been put on residents of nursing homes to secure their votes. I am a little surprised—I put it no stronger than that—that matrons should be the people who sign the form that says, “This person can no longer attend. Can I have a ballot paper please?”.
Ms Harman: The matrons will not be signing to say that someone can no longer attend; they will be countersigning an application signed by the person
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who is not able to vote in person. They have to be a fit and proper person in order to be the person in charge in a registered care home.
We have to be sure that if someone is incapacitated late in the day, but still wants to vote, there is a sensible, practical way of countersigning that does not require so much bureaucracy that they do not get their vote. If matrons are entrusted to look after the physical needs of the elderly person, and they are registered as fit and proper, it seems fair that they should be able to countersign. That is the proposal, and I commend the draft measures to the Committee.
4.53 pm
Mr. Djanogly: The Minister mentioned the Electoral Administration Bill in some detail. She also mentioned the need for consistency, and I thought that I should address the Government’s decision to introduce the present measures while the Electoral Administration Bill is being debated in the other place.
I understand the urgency that arises from the May elections, which the Minister mentioned. There is always use for secondary legislation, but despite the relatively non-contentious nature of these statutory instruments, there are certain issues, which I shall not go into now, on which I felt uneasy when I looked at them and now that we are discussing them, in the light of the Electoral Administration Bill’s progress in the other place. The question is whether the Minister has gone over the Bill and studied the statutory instruments in context, to ensure that there will not be any conflict, or, to the extent that there may be conflict, how she intends to deal with that.
Under regulation 4, registration officers are given powers to check signatures in applications for postal votes by referring to any signature previously provided and to require an explanation if the ballot is to be sent to a different address from that shown in the record. We do not object to that in principle, but we think that it does not go far enough. A MORI poll in March last year found that 54 per cent. of the public think that postal voting has made it easier to commit electoral fraud. An even higher proportion are concerned about fraud in electronic voting.
The third tenet of the Electoral Administration Bill, according to the Government, is to minimise fraud. We think that the regulation does not go far enough towards that objective. In the last election, 15 per cent. of voters requested postal votes—a 7 per cent. increase from 2001. With an increasingly mobile electorate, there is no reason to think that the figures will not grow further. Safeguards must therefore be established to protect against fraud in postal voting.
As when the Electoral Administration Bill was debated in the House, we still believe that the use of national insurance numbers for individual registration would be a more efficient safeguard. I know that the Minister retains that idea as a possibility. I should be grateful to know whether she has shifted her position at all, perhaps as far as considering where it might be piloted.
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Regulation 5 sets out the extra requirements for applications for proxy votes made after 5 pm on the sixth working day before the date of the poll. We do not oppose the provision in principle. Regulation 6 changes the closing date for applications for absent votes from six working days before the poll to 11 working days before polling day. That change was proposed by the Electoral Commission and, on the practical grounds mentioned by the Minister earlier, it seems sensible. However, we question why the Government have not taken on the commission’s recommendation that the last date for registering as an elector should also be moved to the 11th day before polling.
Regulation 6 states that proxy vote applications must be in by 5 pm on the sixth working day before polling day unless the voter becomes physically incapacitated after that date, in which case they can apply until 5 pm on polling day. I think that that was part of the concern of my hon. Friend the Member for Enfield, Southgate.
As I have already said, I feel somewhat uncomfortable in dealing with these statutory instruments when they relate to a Bill that is still going through the House, despite the fact that the issues are relatively non-contentious. I should be grateful for the Minister’s comments.
4.57 pm
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