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Session 2006 - 07
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Public Bill Committee Debates

Draft Local Authorities (Conduct of Referendums) (England) Regulations 2007



The Committee consisted of the following Members:

Chairman: Sir John Butterfill
Burgon, Colin (Elmet) (Lab)
Clegg, Mr. Nick (Sheffield, Hallam) (LD)
Cohen, Harry (Leyton and Wanstead) (Lab)
Curtis-Thomas, Mrs. Claire (Crosby) (Lab)
Djanogly, Mr. Jonathan (Huntingdon) (Con)
Ellwood, Mr. Tobias (Bournemouth, East) (Con)
Grogan, Mr. John (Selby) (Lab)
Hoey, Kate (Vauxhall) (Lab)
Horam, Mr. John (Orpington) (Con)
Hughes, Simon (North Southwark and Bermondsey) (LD)
Jack, Mr. Michael (Fylde) (Con)
Kawczynski, Daniel (Shrewsbury and Atcham) (Con)
Khan, Mr. Sadiq (Tooting) (Lab)
Mitchell, Mr. Austin (Great Grimsby) (Lab)
Mudie, Mr. George (Leeds, East) (Lab)
Waltho, Lynda (Stourbridge) (Lab)
Wills, Mr. Michael (Minister of State, Ministry of Justice)
Glenn McKee, Committee Clerk
† attended the Committee
The following also attended, pursuant to Standing Order No. 118(2):
Burden, Richard (Birmingham, Northfield) (Lab)

Second Delegated Legislation Committee

Thursday 5 July 2007

[Sir John Butterfill in the Chair]

Draft Local Authorities (Conduct of Referendums) (England) Regulations 2007

8.55 am
The Minister of State, Ministry of Justice (Mr. Michael Wills): I beg to move,
That the Committee has considered the draft Local Authorities (Conduct of Referendums) (England) Regulations 2007.
May I say how much I am enjoying my new position, Sir John? Under your august and sage chairmanship, I am sure that we shall dispatch this business very well indeed.
The regulations concern the procedure at referendums held by local authorities under the Local Government Act 2000. They relate to the question of whether a county, district council or London borough should adopt executive arrangements. In other words, they concern how the authority is run. Such arrangements include a mayor and cabinet executive, a mayor and council manager executive, and a leader and cabinet executive.
The principal purpose of the regulations is to implement and incorporate into referendum arrangements the changes introduced by the Electoral Administration Act 2006. They are needed to ensure consistency of electoral practice between elections of local councillors and elected mayors and the conduct of local authority referendums. They re-enact the Local Authorities (Conduct of Referendums) (England) Regulations 2001 and apply only to referendums held in local authorities in England.
The regulations have three key aims. First, they implement changes introduced by the 2006 Act. Secondly, they set out the rules for the conduct of referendums in full. Thirdly, they remove the option for a referendum to be conducted by means of an all-postal ballot following the introduction of personal identifiers for postal voting. The 2006 Act made wide-ranging changes to the way in which the electoral system is administered. The changes to the regulations implementing new electoral arrangements include ballot paper changes aimed at strengthening the security of the electoral process and allowing more automated procedures to be used in the printing of ballot papers. In particular, the regulations provide for new security markings and unique identifying marks to be used on ballot papers and for the counterfoils to be removed from ballot papers and replaced by corresponding number lists.
The regulations include a full set of prescribed forms for use in referendums, which include new forms introduced by the 2006 Act. The new official poll card provides a wider range of information for voters and the introduction of new poll cards for postal voters and proxy postal voters. A new postal voting statement removes the witness declaration but includes a new requirement for postal and proxy postal voters to provide their signature and date of birth. The regulations also set out the rules for the conduct of referendums in full. That will make the rules more easily accessible for electoral administrators and other practitioners. I can confirm that the Electoral Commission was consulted on the regulations and its comments were taken into account in the development of the regulations.
The regulations prescribe the form of words of the question to be asked in the referendum. In particular, we consulted the Electoral Commission, as required by the 2000 Act, for its views on the intelligibility of the questions that may be asked at those referendums. For hon. Members who are interested, full details of the Electoral Commission’s comments and the Government’s response are set out in the report prepared by the Government in pursuance of section 45(8B)(b) of the 2000 Act, which the Government have laid before both Houses of Parliament.
In its response, the Electoral Commission made some suggested changes to the wording of the questions. However, although the Government see merit in the changes we were not able to agree to them at this time. That is largely because the Local Government and Public Involvement in Health Bill will make significant changes to the structure of local authority referendums.
Mr. Jonathan Djanogly (Huntingdon) (Con): Will the Minister outline the proposed changes?
Mr. Wills: I shall come to that later, if the hon. Gentleman will bear with me. I want to explain exactly why we have not at this point pursued the suggestions made by the Electoral Commission. That is a point at issue and I want hon. Members to be clear about it.
The Local Government and Public Involvement in Health Bill will make significant changes to the structure of local authority executive arrangements, which are of course the concern of local authority referendums. The Government agree that the referendum questions should be reviewed. When we do so, we will take into account the Electoral Commission proposals, which have considerable merit in enhancing the intelligibility of the questions for voters. We think that it is more appropriate to undertake any such amendments in the wider context of the implementation of the Local Government and Public Involvement in Health Bill. We need to press on with this matter now, because a referendum may be held as early as August and it is important to ensure that the aims of the 2006 Act are delivered to ensure consistency in electoral law.
Mr. Michael Jack (Fylde) (Con): The Minister has been kind enough to identify the general areas in which the Electoral Commission made recommendations, but he said that the Government believe that, for the legislative reasons that he outlined, some of the recommendations cannot be taken into account. Will he spell out precisely what those Electoral Commission recommendations were and the reasons why, at this stage, they cannot be incorporated into the legislation?
The Electoral Commission believes that its question is a more intelligible one to ask voters and that a more realistic response will therefore be obtained. There is considerable merit in its proposals. We accept that the Electoral Commission would perhaps have benefited from more time for consultation with its stakeholders. Had there been a little more time, we might well have changed the wording of the regulations, but we are under considerable time pressure because some parts of the country may hold referendums in the near future—I understand that one will be held as soon as August.
Rather than hold that referendum under the old regulations, which predate the 2006 Act, which is a considerable improvement on previous arrangements, we thought it better to press on with this matter now, but with a commitment to review the wording of the question. That will ensure that, in due course, we will have the power to come back to this House and ask for the wording to be adjusted in line with the Electoral Commission recommendations. I hope that that answers the right hon. Gentleman’s questions.
Mr. Jack indicated assent.
Mr. Wills: I see that it does. The Government have re-enacted existing referendum questions rather than adopt new and untested questions that have not been the subject of appropriate consultation. In the longer term, we look forward to working with the Electoral Commission on the wording of the referendum question.
We have also sought the Electoral Commission’s views on the limitation of referendum expenses, as required by the Local Government Act 2000. As a result, we have increased the referendum expense limits, so that the base figure is £2,362, which is an increase of £362, and the additional figure is 5.9p for every entry on the register of electors, which is an increase of 0.9p. The changes have been made to reflect changes in the level of inflation since the limits were last set, on 2 April.
I should have dealt with the question asked by the hon. Member for Huntingdon when answering the question asked by the right hon. Member for Fylde, but I shall do so in my concluding remarks. The Local Government and Public Involvement in Health Bill, which is proceeding through the House, removes the mayor and the council manager model and replaces it with a directly-elected executive model. It also changes the circumstances in which referendums may be required.
Taken together, the regulations incorporate into the conduct of referendums important changes to our electoral system made by the 2006 Act. If the Committee agrees the regulations, they will come into force after they are made and they will ensure that local authorities wishing to change their methods of operation can conduct the ensuing referendums according to best practice. I commend the regulations to the Committee.
9.4 am
Mr. Djanogly: I welcome the Minister to his new appointment.
The regulations adjust the rules in England to take into account the changes in the Electoral Administration Act 2006. We strongly support the removal of the option to hold a referendum by all-postal voting, given our ongoing concerns about the security of postal voting in the absence of individual electoral registration. That is a debate for another day.
Despite the Minister’s reference to new identifying marks on ballot papers, which will be welcome, there unfortunately appears to be no reference in the regulations to the signing of ballot papers, which was included in the 2006 Act. Although other legislative changes are required before that measure can be introduced, it would have been sensible to include that in the regulations to facilitate the change. Will the Minister explain why it does not appear?
We agree that it should be possible to conduct mayoral referendums at the same time as elections, but we believe that additional regulations may be necessary to allow local referendums under the Local Government Act 2003 to be held at the same time as a prevailing election. Will the Minister confirm the position on that?
Regulation 5 prohibits a council from issuing promotional material in the 28 days before the date of a poll. We think that that restriction should instead commence when a referendum is called or when the referendum period begins. Paragraph 4.43 of the Electoral Commission’s report into the November 2004 regional assembly referendum stated:
“Although the legislation currently prevents the use of public money for publishing certain types of information in 28 days before the close of the poll, the Commission believes that the Government should not use public money after the referendum period begins (i.e. the date from which campaigners can be registered as permitted participants). However, if it does, it should adhere to a self-imposed restriction period of at least 28 days prior to the distribution of postal ballots. We recommend that this principle be built into the Government’s campaign planning for future referendums.”
We consider that a serious omission from the regulations, and I ask the Minister to explain the Government’s position on it.
I was pleased to hear that the Government will consider the Electoral Commission’s proposed changes to the questions to be put. Will the Minister explain to the Committee the changes that the commission wishes to see made to the questions in the annexe to the regulations? Will he also advise us when they propose to address the commission’s concerns—what is the timetable for future reform?
Several hon. Members rose
The Chairman: I call Mr. Michael Jack.
Mr. Jack: On a point of order, Sir John. Would it not be appropriate for the other side to speak?
The Chairman: Yes, but the right hon. Gentleman caught my eye. I think that it is perfectly in order for me to call in any order that I like. I call Mr. Michael Jack.
9.8 am
Mr. Jack: I am most grateful to you, Sir John, for your kindness in calling me slightly earlier than I had anticipated. One thing that concerns me about the regulations, considering the conduct of a ballot and the Minister’s previous incarnation in which modern electronics were part of his everyday business, is that all the terms under which polls should be conducted, equipment used and ballots counted are expressed in the traditional fashion. I personally believe that that gives an element of security and certainty that electronic means do not have, but I must acknowledge that the world of voting may well move on. Electronic ballots and speedy local referendums may be the order of the day in a few years’ time.
It was evident in the previous local government elections that local authorities were already using electronic systems to, for example, verify signatures in pursuance of postal voting. Yet the regulations, which are supposed to look into the future, are cast in traditional terms. A local authority might want to have a quick referendum to take a sample of public opinion in a short space of time, and electronic means might be a good way to do so.
The effect on participation of the use of electronics and possible remote voting techniques does not seem to be covered at all in the regulations. Will the Minister explain whether there will be sufficient flexibility for a local authority to use electronics, wholly or partly, in the conduct of the referendums that the regulations allow? If that is not the case, will he explain why not and what an authority should do if it wishes to use non-traditional ways of conducting, recording and declaring a ballot? If that is not the case, will he explain why not and what an authority should do if it wishes to use non-traditional ways of conducting, recording and declaring a ballot?
9.10 am
Mr. Austin Mitchell (Great Grimsby) (Lab): I rise to make a few points that I hope the Minister will answer, rather than to induce terror on the Government Benches by threatening to vote against the regulations. That is a clever device for ensuring that one does not serve on any more Statutory Instrument Committees, but I do not propose to use it today.
As a populist, I support referendums and want their use to be maximised, both as a means of consulting the people and giving them a say, which they increasingly want, and as a way of healing the divisions in political parties. In the ’70s, it was appropriate for the Labour party to have a referendum on Europe, because we were so bitterly divided. It is appropriate now for the Conservatives to advocate a referendum on Europe because they are so bitterly divided. It is a highly useful tactical device—
Mr. Jack: Will the hon. Gentleman give way?
Mr. Mitchell: Does the right hon. Gentleman want to deny that they are divided?
Mr. Jack: I have a query. The hon. Gentleman has said that referendums were an important part of the healing process. Will he explain why the Labour leadership was not subject to a referendum?
Mr. Mitchell: That was a question of election for leadership; we did not have a referendum because of the overwhelming support for Gordon Brown as leader—a situation that the Conservative party will not find itself in.
My populist point of view supports referendums. Rather than just taking the opportunity to bring local government referendums into line with the Electoral Administration Act 2006, it would have been useful to have laid down more rules for referendums. Why did we not do that?
For instance, I am disappointed to find that postal ballots are now ruled out for referendums, because of the provisions of the 2006 Act. Postal ballots could be an extremely useful device for referendums, because they maximise turnout. A referendum is often not as breathtakingly gripping as a contested party election. Referendums are ideal for postal voting, e-voting or a combination of the two. Why did we rule that out? We could have devised a system of administration for referendums that would have eliminated the problems. The question of corruption and distortion is not as crucial to referendums as it is to actual elections.
Should we not have some kind of trigger mechanism for local referendums? A certain very low percentage of the local electorate, ratepayers or whoever, could demand a referendum. In previous legislation, there has been provision for that to be 5 per cent., but why can we not have a provision under which 1 per cent. could petition for and trigger a referendum? That would be a useful extension of democracy.
There is also the question whether there should be a defined level of turnout. I forget his exact words, but I remember my right hon. Friend the Member for Greenwich and Woolwich (Mr. Raynsford), a former Minister, saying that a regional referendum would not count if the turnout were pathetic and that it would not be sanctioned. In Australia, a majority of the electorate have to approve any constitutional change, and in Denmark the benchmark is 40 per cent. Why do we not fix a minimum-turnout provision, so that we can assess the state of opinion?
Why did we not take the opportunity to tidy up one of the biggest and messiest anomalies in local referendums—the housing ballots of tenants on large-scale voluntary transfer? Those have involved real disputes and real problems, which include who votes, the timing of ballots, and propaganda. There has been an overwhelming weight of propaganda in favour of housing transfers. Council tenants and ratepayers are deluged at their own expense with propaganda telling them to transfer to a housing association, which they often do not want to do.
Kate Hoey (Vauxhall) (Lab): I appreciate, Sir John, that we do not want to stray too far from the subject under debate, but it is not only Grimsby where that has happened. Just across the river from here is Lambeth, a Labour-held borough which, I am afraid, is pushing through with and spending £1 million on exactly such intimidation of tenants to get them to vote for arm’s length management organisations. That is why my hon. Friend’s suggested changes to the provisions would be very welcome.
Mr. Mitchell: I am grateful for that intervention; such things are going on all over the country. I have not seen what electors have been sent in Lambeth, but I understand that they were asked whether they want millions of pounds from the Government to do up their houses or whether they want to live in manure. They are given that simple choice, which seems slightly weighted in favour of a housing transfer.
In north-east Lincolnshire, in Grimsby, we had a housing ballot in which the council tactics were monstrous; I was against the council so I found them so. With the ballot scheduled to start on a given day, I had prepared at my own expense and that of the GMB union a magnificent case against housing transfer, which was ready for distribution via the local paper. Hearing that, the council brought the ballot forward, so my pamphlet, which cost £2,000, which is big money to a Labour MP, was received by the voters five days after the ballot had started. I wrote to the Electoral Commission and said that it should control that behaviour, and I received a reply to the effect that it had no control over the timing of the referendum, but that it could tell me that most voters had voted within four days of the opening of the postal ballot. There is, again, the potential for all kinds of fraud in the postal ballot, to judge by the Government’s refusal to extend postal ballots in the case of referendums.
Another example involved, I think, Knowsley in Lancashire, where the votes in the ballot came out against large-scale voluntary transfer. The council decided that it did not like the tone of the opposition and within a couple of months held another ballot, which, with a smaller turnout, resulted in a vote in favour of transfer. Those are the kind of tactics that councils use. We should, as believers in democracy, including fair balloting and local government consultation, have used the opportunity presented by the regulations to tidy up that disastrous mess, in which the Government effectively countenanced the distortion of democracy.
Those are my unemotional points, and I hope that the Minister will give us satisfactory answers about why those issues have not been covered in the regulations before the Committee.
9.19 am
Mr. John Horam (Orpington) (Con): I will not get into the question of intimidation in Labour-controlled councils. That seems to be rather a sore point.
Mr. Mitchell: It involves Tory-controlled councils, too.
Mr. Horam: No, no. My council, Bromley, is excellent in such matters, and no intimidation of that kind has occurred. I shall leave Labour party members to stew in their own juice. It seems to be a real problem for them, but perhaps we should be grateful that there are now so few Labour-controlled councils compared with before the last local elections. However, I do not want to discuss that.
The Chairman: I would rather you did not.
Mr. Horam: I shall leave it to Labour MPs to discuss the matter among themselves, although that may well be out of order.
I want to return to a point that has already been raised, because I do not think that the Minister’s answers to my right hon. Friend the Member for Fylde and my hon. Friend the Member for Huntingdon about the Electoral Commission and the extent to which the Government disagree with it were entirely satisfactory. May I remind the Minister that the Electoral Commission was set up by the present Government some years ago to be an entirely independent and public-spirited body? Its function was precisely to take this issue out of politics. Therefore, the Government’s disagreeing with what the commission is saying is a very serious matter. I agree that one does not always have to accept totally what it says—the Government are the Government, and they must make up their own mind—but none the less to disagree is serious, and the intelligibility of referendums and what is said by way of explanation of the question is very important.
I would like to know more fully from the Minister exactly what points the Electoral Commission made and why he disagrees with them. He said that we had to act speedily, because there might be referendums in August and there would therefore be problems if the regulations were not passed. I do not see why he cannot take on board the commission’s view, because there has been some discussion of that ever since 2005, when all these things were first proposed in White Papers and so on.
In addition, it seems rather odd to talk about referendums in August. Even the hon. Member for Great Grimsby protested at August being the chosen time for a referendum on an important local issue. Why August? August is not a good time. We are all away—lots of holidays take place in August. That a referendum might take place in August is not a compelling reason to rush through these regulations. We could have referendums at a more suitable time of year, so I am concerned about that.
There are very serious concerns about the integrity of the register, the amount of fraud in postal ballots and so on, so I take the Minister’s point and am glad that he has ruled out all-postal ballots. I think that that is a step forward, but I am concerned about the extent to which he has disagreed with the wise advice of the Electoral Commission.
9.23 am
Richard Burden (Birmingham, Northfield) (Lab): May I start by expressing gratitude for the fact that you called the right hon. Member for Fylde to speak before me, Sir John? I say so because I want to touch on the point that he made about the importance of electronic developments in relation to voting laws and the verification of votes.
Before I do so, let me explain that the reason why I wanted to speak in the debate really concerns schedule 1 to the regulations, which relates to the question to be asked in a referendum and the implications of that. I have some concern about that, because of the experience that we had in Birmingham a few years ago. We held a referendum on forms of governance for the city council. It was about whether there should be an elected mayor, whether there should be an elected mayor and a council manager, or whether we should stick with a leader and cabinet-type of executive arrangement.
That referendum was conducted on the basis of a multiple-choice ballot. I am sure that that was done with the best of intentions, and was designed to give people a range of options to choose from. The problem was that we were not set up to do this and nobody really knew how they were going to interpret what was inevitably a pretty inconclusive result. It could have been interpreted in any number of different ways; it was partly about which option actually won.
It was not satisfactory, but we ended up with the status quo, which was essentially a leader and a cabinet. There are good arguments for that model—it has its supporters in all parties—but there is an increasing view in the city that it does not meet the needs of England’s second city. I suppose that that view has been encouraged in the past couple of years by the rather indecisive nature of the Conservative-Liberal Democrat coalition that is running the city council and its apparent inability to deal with any criticism. If anybody is in any doubt about that, I suggest that they wait for the council’s response to this debate.
The Birmingham Mail has taken a big role in trying to explore that issue, as have a range of community-based organisations, as they believe that it is important to find a way of letting the people of Birmingham decide, rather than the council leadership, of whatever party. If the council wants a referendum, it can call one in accordance with these and other regulations, but a problem arises if the people of the city want a referendum and the council leadership does not, perhaps because they think it might be like turkeys voting for Christmas. The answer is that people can call for a referendum through a petition if it is supported by 5 per cent. of the electorate. That is a lot of people; in Birmingham it is about 36,000.
What can the council do, and what do the regulations require it to do in such a situation? Is it required to co-operate with the process, or can it make life difficult for the petitioners and get in their way? In Birmingham, the city council is adopting the latter course. It is certainly not going out of its way to co-operate, and some people are saying that it is trying to be as difficult as possible towards the petition, therefore making it more difficult for a referendum to take place. I want to draw attention to a number of procedural issues. The first is verification. If petitioners sign up for a referendum on an elected mayor, the form of the petition must be valid. Petitioners must be on the electoral register, and it is vital that there are no bogus signatures. How can that be verified, who can verify it, and at what point do they do so? The Birmingham Mail, which supports the petition, has told the council that it is putting together a petition, and has asked the people of Birmingham to sign it. It has asked the council to provide access to the full electoral register so that it can check that the signatures are valid and in accordance with the electoral register.
Many people think that anyone can have access to the electoral register, but that is not the case. They cannot have access to the full electoral register. They can have access only to those names that are published on the electoral register. If someone does not want their name on the published electoral register and it does not appear on it, it is impossible for the organiser of a petition to know whether that person’s name is on the register or not. The local authority has access to that information, but it has not given such access to the local paper and those organising the petition. The local authority could check the signatures against the full electoral register and, if there is a problem, alert the petition organisers, but it has not agreed to do so. The result is that it will be only at the point that the petition reaches 36,000 signatures or more and is submitted to the local authority that Birmingham city council will go through it and check every single signature. If one signature turns out not to be valid, or if it is arguable that it is not valid, even though those who organised the petition thought that it was valid to the best of their knowledge and belief, the council can rule the petition out. In terms of democracy that is a bit of a problem and I wonder if these or any other regulations can do anything about it. It is fine to decide whether there should or should not be an elected mayor, but to get in the way of a petition for a referendum seems to be something else.
The second issue relates to the point made by the right hon. Member for Fylde about electronic information. It is important that, whether in referendums or elections, fraud is tackled, as we know that there have been problems with fraud in various places. The world is moving on, and the world of electronics is with us. Increasingly, if someone considers starting a petition for something such as a referendum on an elected mayor, it may be a problem if everything on that petition has to be hand-written. Let us imagine that the local paper asks people to send in their comments: do we really think that the best way of facilitating democracy is to rule out any use of electronics in the process? I do not know if the regulations will help with that or not, but I urge my hon. Friend the Minister to think about it.
The third matter that I would like to raise is that of consistency, as we must ask local authorities to be consistent in the way in which they treat referendums and petitions. So far, after just a few weeks, the Birmingham Mail has obtained about 5,000 signatures on its petition requesting a referendum for an elected mayor for Birmingham. It is doing its best to check the validity of those signatures, but is having difficulty doing so for the reasons that I mentioned. There has been another recent petition in Birmingham—again, one that I completely support, as it is for a great cause—for the redevelopment of Birmingham New Street station. The petition is backed by Birmingham city council, which wants the station to be redeveloped, as I do, too. The petition secured 7,000 signatures in nine weeks, and Birmingham city council and a number of other local partners, including me, have said to Ministers, “Here we are. This is the will of the people of Birmingham and the broader west midlands. We want to see New Street station redeveloped. Please listen to this petition”. There has been no process of checking or verifying the petition, but I do not have a problem with that, because it was a genuine expression of the views of local people.
The problem, however, arises when the same local authority that went down that road for a petition that it supports becomes incredibly procedural and obstructive about something that it does not support, particularly if it threatens its own position. That is a problem for democracy and for the way in which we allow local people to decide those things. I wonder if the regulations will help to address those problems; if they can, that is great and I hope that my hon. Friend the Minister will say that is the case. If the regulations cannot do so, perhaps he could give us some information on how we can tackle these problems in future. He could perhaps meet me and the editor of the Birmingham Mail in the next few weeks to see if anything can be done to sort this out and allow the people of Birmingham, rather than a particular council leadership at any point in time, to decide how they are governed at a local level.
9.33 am
Mr. Wills: I think that we have had an extremely interesting discussion. I would have expected Members of Parliament who have been asked to scrutinise voting regulations, referendums or any related issue to take a keen interest, and I am glad that hon. Members from all parties have done so.
I am pleased by the underlying note of consensus on these arrangements, and I hope and expect that there will not be a vote. Important points of detail and principle have been raised, and I will address them now. The hon. Member for Huntingdon asked about the provisions for signatures, which he will be aware requires primary legislation. We will bring forward that primary legislation as soon as we can.
The hon. Gentleman also asked about the use of promotional materials, which is governed by the code of conduct on local authority publicity. Council publicity should avoid promoting a particular answer to a question, and the 28-day period in which promotional materials are restricted is simply re-enacted from the 2001 regulations, which have been through the House.
Mr. Djanogly: As I made clear in my remarks, an Electoral Commission report on the 28-day period suggested otherwise. Will the Minister address the commission’s concerns?
Mr. Wills: We treat everything that the Electoral Commission says with great respect and try to implement its comments wherever possible. The code of conduct on local authority publicity applies to general material that is produced by local authorities during a referendum period, and we believe that those protections are adequate. The hon. Gentleman returned to the point about the Electoral Commission’s views on wording, which I shall deal with when I address the points raised by the hon. Member for Orpington.
The right hon. Member for Fylde is rightly concerned about the use of new technologies in voting procedures, which is a real issue. I note that he chose his words carefully—he said “in a few years’ time”—and he was right to introduce that note of caution. My local authority piloted e-voting in the recent local elections. Despite having an excellent returning officer, who is a very experienced gentleman, there were considerable problems, which excited considerable unease locally, not about fraud, but about the reliability of the relevant systems. I shall not tire the Committee with all the details of what went wrong, but there were considerable problems. I am sure that he accepts that we need to move with caution.
The right hon. Gentleman was right to draw attention to the need for quick referendums. I hope that he will contribute to the discussion on the Green Paper that was launched on Tuesday, because he has raised important constitutional points. We have the option of moving rapidly to a plebiscitary democracy, which I hope he would deplore, using the mechanisms that he suggested. We need to keep our system of representative democracy in place and to make the best possible use of those new techniques. He is right to raise that issue, but it is a difficult point of principle. He asked what mechanisms there are for local authorities to introduce those sorts of systems. They can still apply to the Government for a pilot order to conduct referendums and can pilot electronic voting, as some local authorities, such as Swindon, did in the last local elections.
My hon. Friend the Member for Great Grimsby made a splendid contribution to the discussion, and I am always happy to hear from him on these issues. Sadly, much as I should like to address all his concerns, most of them are outside the remit of the regulations. There has been some concern about the lack of all-postal voting ballots. I understand why he is so keen to have them, but the law, which has been passed by the House, requires personal identifiers on postal voting statements to be checked before the vote goes forward to the count. To have an all-postal ballot referendum would mean collecting signatures and dates of birth from every eligible voter in the authority in order to verify the personal identifiers on postal voting statements. That would be a logistical nightmare, and it simply would not be possible in the time available. In the end, it might have the opposite effect to the one that he would like. In other words, it might disfranchise potential voters, rather than encourage them to vote.
I understand my hon. Friend’s concern about housing ballots and the other widely held concerns, which he expressed eloquently. Unfortunately, however, they do not fall within the remit of the regulations. Indeed, I am not even sure that they are my responsibility, but I am very happy to put him in touch with the relevant Minister, with whom he could continue this discussion, although I am sure that he has frequently been in touch with that person already.
My hon. Friend also asked about the trigger mechanisms. The Department for Communities and Local Government has been examining the process, and it has decided on the appropriate level. However, as I have said to the right hon. Member for Fylde, my right hon. Friend the Prime Minister’s statement on Tuesday made it clear that he wants all hon. Members, and, indeed, all the people of this country, to participate in the debate on a new constitutional settlement. Clearly, the regulations will play a part in that, but we will continue to look at the matter. I hope that my hon. Friend the Member for Great Grimsby will bring his wisdom and experience to bear in that discussion.
My hon. Friend raised a subject that always comes up in such discussions: should a particular level of turnout be applicable? Again, I think that strictly speaking that is slightly outside the remit of the regulations. We have not addressed that matter yet. As he knows—he is much more experienced than me in such matters—the case could be argued in many different ways, and there are strong issues of principle on both sides. The Government’s view is that, at the moment, it is not appropriate for people to fix a qualifying turnout figure. We do not have that for general elections, and we do not see any reason to change it for referendums. However, I understand the strength of the opposing argument.
Have I covered all of the points that my hon. Friend made?
Mr. Mitchell: Yes.
Mr. Wills: The hon. Member for Orpington is under a slight misapprehension about our relationship to the Electoral Commission’s recommendations. We do not disagree with it, as he has suggested, and the problem is simply one of timing. I now have in front of me the actual wording of the recommendation, and although I have given the gist of it to the Committee already, it might help hon. Members on both sides if I read it out:
“Currently decisions in [insert council name] are made by [insert appropriate model].
This referendum is about a proposed change.
The proposal is that future decisions will be made by [insert appropriate model].
Do you think the way decisions are made for [insert council name] should change?
Yes, it should change
No, it should stay the same”.
I hope that hon. Members agree that that form is more intelligible in many ways. It is designed to be more intelligible to voters, many of whom are presumed not to be intimately familiar with the models of governance for their local authority. As I have said, we see considerable merit in that proposal.
The matter is purely a question of timing. I am happy to hold my hand up on behalf of the Department. Maybe we should have organised the consultation periods a bit better so that they were more in sync with each other, but we did not, and we must move forward because of the impending referendum. The decision to hold the referendum in August was not ours. I understand the concerns of the hon. Member for Orpington, but it was not our decision. We are bound by decisions made by local authorities, and if they want to hold referendums to that sort of time scale, they should do so using best practice.
We need to keep reviewing that matter, which will do, and we have the power to make further amendments. When the Local Government and Public Involvement in Health Bill is in place, we intend to re-examine the recommendations. I cannot make a firm commitment at the moment, but I am sure that the hon. Gentleman will understand what I mean when I say that we see considerable merit in the Electoral Commission’s proposals.
My hon. Friend the Member for Birmingham, Northfield made a powerful case for his own area, and I am very sympathetic to it. The Government are always very grateful when local people take such an active interest in the governance of their local authority, and I pay tribute to the role of the Birmingham Mail, which he has just described. I would certainly be happy to meet him, the editor of the Birming ham Mail and anyone else with whom he thinks it appropriate to discuss the matter further. However, the fundamental underlying principle is absolutely clear. The regulations are designed to facilitate and secure a voice for local people in how their local authority is run; they are not designed to prevent that from happening, and I hope that that message is clear. They are not an excuse to thwart the will of local people and I hope that my hon. Friend’s local authority is clear about that. The regulations are designed to secure the process in line with best practice, and they should not be used as an excuse to defeat how people want to see their local authority run.
My hon. Friend has said that we needed to look at how and when referendums should be held. That is a fair point, but I am afraid that it is the subject of separate regulations dealing with petitions and directions for a referendum. All those issues will be informed by discussions and consultations that we are holding on the wider issues around a constitutional settlement. In the end, I do not think that those issues can be separated. We shall have a wide-ranging discussion about a new constitutional settlement, and we shall need to keep all those issues of detail under consideration, but my hon. Friend is right to raise the matter.
My hon. Friend mentioned the integrity of the register. The electoral registration officer has a new duty to ensure that the register is as accurate as possible and to encourage participation in elections, which was introduced by the Electoral Administration Act 2006, as he will be aware.
My hon. Friend also raised an important point about access to the register. The question is difficult, because issues of data protection are involved. Any individual can inspect the full register; the problem is taking a copy away, as that is restricted for data protection purposes. It is not appropriate for a petition organiser to take a copy away, because that would be an easy way for unscrupulous individuals to get hold of the register, as I am sure my hon. Friend understands. We will keep looking at the issue, because the fundamental principle applies—to facilitate and secure a means by which people can express a view, not to thwart it.
Forgive me if I have missed any hon. Member out, Sir John. I should be happy if a member of the Committee wants to intervene—I assume that the silence means that I have covered every conceivable point.
Mr. Djanogly: I should like to say a few more words, because this has become a wide-ranging and interesting debate on referendums. I appreciate the Minister’s response on the signing of ballot papers. He said that primary legislation would be required. With the 2006 Act having recently been passed, I am not sure when that primary legislation will be due—
Mr. Wills: As soon as possible.
Mr. Djanogly: That is certainly an improvement, and I thank the Minister for that.
In relation to the 28-day period, I did not think that the Minister’s response—that that period has been chosen simply because it was in the 2001 regulations—was particularly strong. That is something that the Government should consider again.
The hon. Member for Great Grimsby mentioned his concerns about the security of the poll, which we share. They relate to the wider debate about security as against participation, which is one that we have been having with the Government over the past few years and one that I imagine we shall continue to have.
I certainly appreciate the wider concerns that the hon. Member for Birmingham, Northfield expressed that a local authority should not be able to wrap up the process and, in effect, avoid or evade the will of the people. There is an ongoing debate to be had on that, which we shall be interested to look into. However, I have significant concerns about his more specific point—that petitioners should have the right to have the full electoral register—both from the point of view of confidentiality and the need for some people to maintain security and from a wider data protection point of view.
Richard Burden: I fully understand the hon. Gentleman’s point, and I share that concern. However, if the petitioners were not to have access, perhaps there could be an obligation on the electoral registrar—effectively, the local authority—to help check while the petition was being developed, rather than right at the end when they would just sort it out.
Mr. Djanogly: I take the hon. Gentleman’s point. Alternatively, perhaps there could be built into the process an obligation on the council to send information out to everyone on behalf of people. I agree that there is a further debate to be had.
Finally, my hon. Friend the Member for Orpington and my right hon. Friend the Member for Fylde both spoke about the wording of the question to be put. The Minister pretty much admitted that he prefers the Electoral Commission wording to the wording in the order, which leads to the wider question of the timing of the order—whether we are rushing it through and whether we should spend more time on it.
I appreciate that if there is going to be a referendum in August, the Government will be concerned to put the order through, although I take the point that my hon. Friend the Member for Orpington made, when he asked why a referendum is going to be held in August. It seems like a ridiculous time to hold one, but on the basis that one will be held, I can see that on balance there is more good in implementing the order before the referendum.
On that basis, I shall not seek a Division, with the proviso that I should like to hear the Minister say that this is not the end of the story, and that we will reconsider the question that will be asked and, perhaps, some of the wider issues that have been mentioned today. If he could indicate when that might be, I think the Committee would be grateful.
Mr. Wills: I can certainly give the hon. Member for Huntingdon the assurance that he seeks. We will continue to consider the issue. I understand how concerned he is about the 28-day period, but there is a simple reason for the measure: there is no point in bothering the House endlessly with measures that have already been through the House. That is why we are re-enacting the 2001 regulations, although I understand his point. The situation is changing, and as I keep saying, we are embarked on a discussion about a new constitutional settlement. It is right that we consider such levels of detail, and although I understand his concerns, we will do so. I cannot guarantee when that particular point will go through the process.
We recognise that we must keep a close eye on the way in which things are changing, and we will do so. We will return to the matter as soon as possible. However, that does not mean that the issue has been kicked into the long grass. The situation is changing for reasons advanced not least by the right hon. Member for Fylde. I assure the Committee that we will continue to consider the situation.
Today, we are simply bringing into effect what is in our view the best current electoral practice in relation to referendums on local authority models of governance. If and when approved, the regulations will implement the changes made by the Electoral Administration Act 2006, and they will ensure that there is consistency of electoral practice between the conduct of local authority referendums and elections. I hope that the Committee agrees that that is desirable, and I commend the draft statutory instrument to the House.
Question put and agreed to.
Resolved,
That the Committee has considered the draft Local Authorities (Conduct of Referendums) (England) Regulations 2007.
Committee rose at six minutes to Ten o’clock.
 
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