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Public Bill Committee Debates

Draft National Assembly for Wales (Representation of the People) Order 2007

The Committee consisted of the following Members:

Chairman: Mrs. Joan Humble
Afriyie, Adam (Windsor) (Con)
Ainger, Nick (Parliamentary Under-Secretary of State for Wales)
Allen, Mr. Graham (Nottingham, North) (Lab)
Chaytor, Mr. David (Bury, North) (Lab)
David, Mr. Wayne (Caerphilly) (Lab)
Dorrell, Mr. Stephen (Charnwood) (Con)
Field, Mr. Mark (Cities of London and Westminster) (Con)
Hoyle, Mr. Lindsay (Chorley) (Lab)
Irranca-Davies, Huw (Ogmore) (Lab)
Jones, Mr. David (Clwyd, West) (Con)
Khabra, Mr. Piara S. (Ealing, Southall) (Lab)
Moon, Mrs. Madeleine (Bridgend) (Lab)
Price, Adam (Carmarthen, East and Dinefwr) (PC)
Ruane, Chris (Vale of Clwyd) (Lab)
Turner, Dr. Desmond (Brighton, Kemptown) (Lab)
Watkinson, Angela (Upminster) (Con)
Williams, Mark (Ceredigion) (LD)
James Davies, Committee Clerk
† attended the Committee

Third Delegated Legislation Committee

Monday 29 January 2007

[Mrs. Joan Humble in the Chair]

Draft National Assembly for Wales (Representation of the People) Order 2007

4.30 pm
The Parliamentary Under-Secretary of State for Wales (Nick Ainger): I beg to move,
That the Committee has considered the draft National Assembly for Wales (Representation of the People) Order 2007.
May I say what a pleasure it is to serve under your chairmanship, Mrs. Humble? This is my first opportunity to speak in a Committee chaired by you. The order is large and complex, but I hope not to detain the Committee for too long.
Last year saw the passage of two important pieces of primary legislation, which are reflected in the order that we are considering today. The first is the Government of Wales Act 2006, which made changes to the Assembly electoral system in Wales, and the second is the Electoral Administration Act 2006, which introduced a wide range of much-needed reforms, some of which apply directly to Assembly elections and those participating in them.
The Electoral Administration Act 2006 is primarily concerned with the conduct of parliamentary and local government elections. It was always envisaged that Assembly elections would be conducted on broadly similar lines to elections to this House. The order will ensure that all relevant changes emerging from both those Acts are reflected in the arrangements for Assembly elections from 3 May. It has been made under section 11 of the Government of Wales Act 1998 and was laid before the House on 19 December 2006. It does not, and could not, address the currently topical issue of a convicted prisoner’s right to vote. That was the subject of a judgment by the European Court of Human Rights in the case Hirst v. the United Kingdom, on which the Government recently commenced a consultation. Any resulting extension of the franchise will apply equally to Assembly elections.
As I have said, the order is lengthy and carries forward substantial elements of its predecessor order, which was made in 2003. Although significant changes have been made, the underlying policy was closely scrutinised during the passage of the Government of Wales Act 2006 and the Electoral Administration Act 2006. In view of that, it would probably not be good to take up the Committee’s time by summarising the whole of the instrument. I propose briefly to highlight some of the more significant changes, but in doing so, I emphasise that the vast majority are based on parallel provisions in the Electoral Administration Act 2006 and other legislation.
Personal identifiers will have to be collected from existing absent voters, and schedule 2 provides for that to be done ahead of the May elections. To minimise the risk of people falling off the list of postal voters, electoral registration officers will be required to send at least one reminder to anyone who fails to respond to the first request. Personal identifiers collected for parliamentary or local government elections will be equally valid for Assembly elections, so there will be no need to collect a second set. However, it is essential that those identifiers are on file before a person exercises an absent vote. If, after due notice, an elector does not provide them, that elector’s name will be removed from the list, although that will not prevent them from submitting a new application to vote by post or proxy.
The proscription of offences in article 14 addresses the abuse of absent votes, and the offences are broader than those in the existing order. They include the fraudulent provision of a signature and other acts aimed at fraudulently gaining a vote or depriving another elector of their right to vote.
The order implements greater flexibility for voting by patients detained in mental hospitals, who could previously vote only by post or by proxy. The order recognises the right of such electors to vote in person at a polling station, so long as the hospital gives them leave of absence to do so.
The most important part of the electoral process is casting the vote, the point at which every registered elector has the opportunity to affect the outcome. From the elector’s perspective, voting will not be markedly different from their previous experience. However, a number of detailed changes are being made. Some will streamline the administration of elections, while others are intended to remove unnecessary burdens and to prevent confusion.
In future, a candidate will be able to include in the nomination paper any name by which he or she is commonly known, subject to sensible safeguards for the avoidance of confusion and offence. That goes further than recognised contractions: any forename, surname or single word by which the candidate is commonly known can be used, even if it bears no relation to their real name. The Electoral Administration Act 2006 amended the Political Parties, Elections and Referendums Act 2000 by allowing parties to register with the Electoral Commission upto 12 descriptions for use on ballot papers. In relation to elections held in Wales, each of those may include up to six words of English and up to six words of Welsh. Subject to authorisation by their parties’ registered nominating officers, candidates at Assembly elections will now have the option of being described either by the registered party name or, where a party has registered separate English and Welsh names, by both, or by one of the party’s registered descriptions. Those provisions will apply equally to party lists at regional elections. As at present, an independent candidate who wishes to use a description is limited to the words “independent” and/or “annibynnol”.
Constituency ballot papers will remain similar in appearance to those with which we are familiar, but there will be some practical changes to the way in which they are produced. First, they will no longer have counterfoils, which will allow more automated printing processes to be used. The issue of ballot papers to a voter will be recorded on a corresponding number list, which will be sealed after the election to preserve the secrecy of the ballot.
Secondly, returning officers will have more options on security marking. To be accepted as valid, a ballot paper must still carry an official mark, but that needno longer be made by the traditional perforating instrument. Alternative forms of security mark might, for example, include a water mark or underprinting. Thirdly, every ballot paper must carry its own unique identifying mark in addition to a number. While the form of that mark is not prescribed, we envisage that many returning officers will favour bar codes, which will be of particular benefit in the context of legal proceedings if it becomes necessary to retrieve an individual ballot paper.
I want briefly to mention the regional ballot paper, which used to be laid out in landscape style. Party names and candidate lists were presented in columns, and electors had to mark their votes at the top. Feedback from voters indicated that they found that unhelpful. After consultation with key stakeholders, including political parties and the Electoral Commission, we have therefore prescribed a new regional ballot paper in portrait format, which will be much more user friendly.
New poll cards are prescribed to make clear the voting arrangement that applies to each elector. Returning officers will now be required to send poll cards to all electors, including those with a postal or proxy vote. That will serve as a useful reminder to people who have forgotten that they are registered as absent voters, while also guarding against the risk of fraudulent applications.
Mr. Mark Field (Cities of London and Westminster) (Con): I have been listening with interest to what the Minister has said, particularly in relation to absent voters. He knows that the chief concern on this side of the Committee is all-postal voting. While I appreciate that that is not the intention of the order, will he tell us whether increased resources will be available to returning officers in the first instance and, potentially, to the police for the investigation of irregularities, particularly in areas of Wales where turnout is low—I guess that, as in England, such areas are in inner-city seats. We must keep the risk of electoral fraud to an absolute minimum.
Nick Ainger: I was expecting a question on that point. Under the order, returning officers will initially be required to check 20 per cent. of postal votes against personal identifiers. They will have the discretion to check more, particularly if they find irregularities. On resources, the requirement for additional resources has been recognised, and they will be available.
After the election is over and the results have been counted and declared, election documents will be stored locally instead of being forwarded to the Assembly. That is a more sensible arrangement, allowing easier access to documents made available to parties and candidates. We shall shortly make separate regulations setting out conditions for the inspection of documents by members of the public. I assure the Committee that documents relating directly to a poll will continue to be sealed up, ensuring that information that might disclose how a particular vote was cast cannot be accessed without a court order.
Article 47 sets limits on the election expenses of constituency candidates and of individual candidates in regional elections. With the exception of a small amount for personal expenses, the order does not regulate the costs incurred by party list candidates, as such costs are treated as part of parties’ campaign expenditure, which is subject to limits set out in the Political Parties, Elections and Referendums Act 2000. The new limits are based on the Electoral Commission’s recommendations, and they are in line with those that applied in the 2005 general election.
We have also revised the requirements on candidates’ expenditure returns to bring them in line with the provisions of the Electoral Administration Act 2006. To recognise the key role of the Electoral Commission in ensuring the full transparency and accountability of participants in elections, there is provision for it to prescribe additional details to be included in candidates’ returns. The form of return has been designed in close consultation with the commission.
I draw the Committee’s attention to important new provisions in the “Miscellaneous and supplementary” category in part 5 of the order. Article 141 authorises the translation of most election documents into languages other than English and Welsh and the use of Braille and other means of communication, which is aimed at ensuring that nobody is excluded from the election process through not understanding our languages or because of disability.
Article 144 sets out the conditions under which certain documents can be transmitted electronically, allowing the use of modern technology where appropriate.
Article 148 prescribes a minimum period for the purpose of determining when the Assembly is to be dissolved prior to its election, which is a new provision derived from the changes made in the Government of Wales Act 2006. A period of 21 days is consistent with that prescribed for the Scottish Parliament. The practical effect will be that future Assemblies will normally be dissolved about the beginning of April in election years.
In accordance with the Political Parties, Elections and Referendums Act 2000, the draft order hasbeen the subject of consultation with the Electoral Commission, which has confirmed that it is content with the version before the Committee. We have also shared the draft with a range of key stakeholders through the Assembly Government elections planning group, and we have taken full account of their comments. The order is detailed and comprehensive, and it will ensure that Assembly Members continue to be elected through an equitable and transparent process that everyone can trust. I commend it to the Committee.
4.45 pm
Mr. David Jones (Clwyd, West) (Con): I echo the Minister in welcoming you to the Chair, Mrs. Humble. I am grateful to the Minister for his explanation of the order. As he has said, it is by any standards extremely long and of considerable complexity, with no fewer than 277 pages. It was with considerable shock that I first saw the document, which landed on my desk with a thud. As a relatively new Member, however, I was heartened by the comments of my noble Friend Lord Roberts of Conwy. When the order was debated in another place, he pointed out that it is by far the largest statutory instrument that he has encountered in35 years of parliamentary experience.
I echo my noble Friend’s concerns about the haste with which the order has been placed before Parliament—it is due to come into force in a matter of days at the beginning of February. As the Minister has said, the order introduces important reforms on the conduct of elections, particularly in respect of postal and proxy voting, which it is important to get right.I understand the practical difficulties that the Government face, which Lord Evans of Temple Guiting outlined in another place, but it is a tall order to expect hon. Members to digest such an enormous document in the time available.
A further problem is that the order cannot be amended—the draft must be either approved or rejected. It is important that the thrust of the order is brought into force, but I have concerns that it may contain lacunae that hon. Members have been unable to identify owing to the short time available in which to study it . On page 8 of the draft order, for example, the word “which” has clearly been omitted from the definition of “ordinary local government election”, and it is likely that the document contains other errors. I drew the omission to the attention of the Minister before the Committee sat, and he may wish to mention it in his response. It would have been helpful to have longer to consider the order, and one wonders whether one and a half hours in Committee is sufficient to consider such an enormously complex document.
I remind the Committee that the House will be required in future to consider draft Orders in Council for the piecemeal devolution of primary legislative powers to the Welsh Assembly. Those orders might be even more complex than that which we are considering today, and, as my hon. Friends and I have mentioned, the proposed machinery might not be sufficient to deal with matters of such importance.
It is also essential that as much as possible is done to combat the disturbing increase in election fraud that has accompanied the use of postal votes. For that reason, the provision of personal identifiers is welcome. My party would have preferred considerably more robust measures, but the procedures in the order are nevertheless welcome. Schedule 2 stipulates that two identifiers, namely a date of birth and a signature, will have to be provided. The information must be provided within 42 days, but voters in effect have 49 days from the date of the notice given by registration officers, after which they will cease to be entitled to vote by post or proxy. The explanatory memorandum acknowledges the risk that postal voters will fail to return their identifiers and therefore lose their postal votes. I appreciate that the Minister has said that it is possible in such circumstances to apply afresh for a postal vote, but it is desirable to initiate a publicity campaign to advise postal voters of the need to return their identifiers. Do the Government or the Welsh Assembly propose to initiate a campaign to urge postal voters to return their identifiers promptly?
The Minister is aware that local authorities in Wales have already sent out forms requiring the provision of identifiers. I take it from what he has said that the circulation of those forms has not anticipated this order and that it has taken place under the provisions of the Absent Voting (Transitional Provisions) (England and Wales) Regulations 2006. I would be grateful if the Minister were to confirm that.
The Minister referred to the checking of postal votes in response to a point raised by my hon. Friend the Member for Cities of London and Westminster. The order provides for an automatic check of 20 per cent. of the postal votes. However, the criteria that returning officers should use if the checking process reveals a large proportion, or any proportion, of dubious postal votes are less than clear. At what point is a full check called for and what would be the consequence, in electoral terms, of a check that revealed a significant proportion of dubious postal votes?
I want to comment briefly on the explanatory memorandum, which has self-evidently been produced to assist members of the Committee—an accurate explanatory memorandum is more necessary in this case than most others. As I said to the Minister when we debated an arcane measure on water supply in Herefordshire and Cheshire, the opacity of explanatory memorandums is not helpful. I appreciate that the memorandum has been produced under considerable time pressure, but it does not seem to be wholly accurate. For example, paragraph 7.34 states:
“Electors will be required to sign for their ballot paper against a ballot paper number and their elector number on part 2 of the corresponding number list.”
As I understand it, such a provision had been envisaged but was not incorporated in the final draft of the order. Will the Minister say whether that is indeed the case? Will he also say whether the explanatory memorandum is inaccurate in any other respects?
Perish the thought that I should be regarded as nitpicking, but the options in paragraph 8.1 have not been amended to indicate whether a regulatory impact assessment is required. I fully understand that the Government have been working under great pressure of time, but that does not obviate the need for an accurate and comprehensive explanatory memorandum—if anything, it makes such a memorandum all the more desirable and necessary.
Subject to that proviso, and to grumbling gently about the time pressures under which the Committee has been working, I confirm that my party will not oppose the order. We fervently hope that it willlead to the fulfilment of the Government’s aim of improvement in voter engagement, and an increased turnout in May’s elections would be the ultimate proof of its success. One wonders what a reduced turnout would prove.
4.55 pm
Mark Williams (Ceredigion) (LD): May I also thank you, Mrs. Humble, for the opportunity to serve under your chairmanship?
The hon. Member for Clwyd, West has engaged in the light grumbling that is probably customary on these occasions, and perhaps I can join him in that. There are two reasons why we are concerned about the timing of the order. First, to put it proverbially, the Government are cutting it a bit fine if the order is to come into force in February. Why has the order arrived in the House just a week before the deadline? I reiterate what the hon. Member for Clwyd, West has said; there are concerns about the capacity of the Committee to scrutinise what I suspect will become the bible for those interested in the finer points of electoral politics.
The other concern about timing—again, the point has already been made—is on postal votes and whether the Government are satisfied that a 49-day period is enough to mobilise people to register in the way in which we want. The principle behind personal identifiers is something that, of course, we all welcome, with the avowed objective of increasing the turnout on the first Thursday in May, so that it is much higher than the 38 per cent. who voted last time.
Ultimately, the final judge of this measure will be its capacity to increase turnout. There are some specific details that will help in achieving that aim. I do not have the figures for spoiled ballot papers in the last Assembly elections, but the clarity on the regional list form is certainly welcome, as is the extension to the six-word limit to describe the party label on the ballot paper. The earlier limit did not present a particular problem for my party, Democratiaid Rhyddfrydol Cymru—the Welsh Liberal Democrats—or indeed for other Opposition parties, but it did for others. That change is therefore welcome.
In the other place, my noble Friend Lord Roberts of Llandudno mentioned the issue of postal votes for those serving overseas. The Government spokesman, Lord Evans of Temple Guiting, gave some assurances that that issue would be examined. Will the Minister update us on whether he envisages any problems for our forces serving overseas, and if there are any problems, have they been, or will they be, rectified?
The other issue that is missing from this wide order is the issue of counts. There has been recent speculation on that issue, which relates to the point made by the hon. Member for Cities of London and Westminster about resources. Returning officers have expressed concerns about the timing of counts. Specifically, they have questioned whether counts will be undertaken on the night of the election or whether they will starton the following morning. In some of the big rural constituencies, the count traditionally takes place on the Friday. However, if we are to capitalise on what will hopefully be momentum towards a higher turnout at this election, any advice that the Government could give the Assembly on the commencement of counts on the night of the vote would be welcome.
We welcome the order. It is extensive, and it covers all the issues, except the issue of counts. If the Minister were to clarify that issue, we would be very grateful.
4.59 pm
Nick Ainger: I am grateful to the Opposition Members for their questions and for the way in which they have put them.
The hon. Members for Ceredigion and for Clwyd, West have raised the issue of timing—has the measure been introduced too quickly or too slowly? We had to wait for Royal Assent to both the Government of Wales Act 2006 and the Electoral Administration Act 2006 and for the introduction of the secondary legislation, particularly that relating to the 2006 Act. Schedule 4, which deals with the combination of elections, needed to reflect the provisions on local government conduct in the Representation of the People (Combination of Polls) (England and Wales) (Amendment) Regulations 2006, which were made in the House on 12 December. We had to wait for that process to be exhausted before we could lay this order, which we did on 19 December. In 2003, we were rightly criticised when we laid a similar order four weeks later in the process than this one. Hon. Members have had sufficient time to scrutinise the order, because it was laid on 19 December. As I have said, the bulk of the order is based on the 2003 order. I asked my officials to calculate what proportion of the order is new, and the answer is 10 to 15 per cent.
I understand hon. Members’ concern when, as the hon. Member for Clwyd, West has said, a document approaching 300 pages lands on the doorstep. I understand their concern, but the timetable was set by other factors. We have introduced the measure as quickly as we can, while involving people, particularly returning officers, all the way through the process. Returning officers are aware of what is happening and what is in the pipeline, and they have been able to comment on the drafts. I think that we have got it right. As I have said, the Electoral Commission has lookedat the order, and it is satisfied that we have got the order right.
The hon. Member for Clwyd, West has mentioned an omission, and I am grateful to him for giving me notice of it. Obviously, this is a very lengthy order. Despite officials’ best efforts, some typographical errors crept into the version laid on 19 December. Since then, we have made further checks, and a number of small corrections will appear in the final printed version. One of those corrections is the one that the hon. Gentleman has described—it had been spotted, but I am grateful to him for raising it.
The hon. Gentleman has asked me to confirm that returning officers have started the process of requesting personal identifiers not because they have pre-empted this order, but because they have been using the Absent Voting (Transitional Provisions) (England and Wales) Regulations 2006. That is why the requests have been going out, and rightly so. The longer that we give people, the better the situation will be.
The hon. Gentleman has asked me about publicity to remind people that it is important to complete the personal identifiers form. The Electoral Commission has already begun a publicity campaign to remind absent voters of the need to return their personal identifiers. Such voters will get the initial letter and then a reminder within three weeks if they do not respond. If they have not responded after 49 days, they will receive a letter informing them that they have been taken off the postal voter registration list. However, I understand that an application form will be included in the final letter to allow people to apply for a postal vote, which will allow us to try to ensure that the list contains the maximum number of people.
The hon. Gentleman has asked when returning officers will decide to check more than 20 per cent. of postal votes. The regulations make it clear that it isat the discretion of the returning officer. I have confidence in returning officers. If they spot that something is going or has gone wrong, they will start to check a lot more postal votes—up to 100 per cent.—by comparing them with the personal identifiers.
The hon. Gentleman has asked about paragraph 7.34 of the explanatory memorandum. I think that I had better drop him a line, if he is happy with that.
On the hon. Gentleman’s final point about the regulatory impact assessment, the Department for Constitutional Affairs believed that no such assessment was necessary for its amendment to the representation of the people regulations, so it was not considered to be necessary for this order.
The hon. Member for Ceredigion has discussed his concerns about the count. Discussions are ongoing, but the Government’s view is that the count should take place as soon as possible after the vote. We would like it to take place overnight and not to be delayed. I think that I have responded to all hon. Members’ points—
Mr. Jones: The Minister has not addressed one aspect of the point about the check on postal votes. He has explained that the returning officer will have the discretion to call for a 100 per cent. check, if the 20 per cent. check shows a proportion of dubious votes, but what would be the electoral consequences if, for the sake of argument, a substantial portion of the votes in the 100 per cent. check were in some way dubious? What action would the returning officer take in those circumstances? I cannot see where that is set out inthe order.
Nick Ainger: That is an important point, and I shall write to the hon. Gentleman. [Interruption.] Perhaps I can save the stamp. If the returning officer is satisfied that abuse has taken place and that the personal identifier attached to the vote does not correspond with the personal identifier on their record, that vote would be disallowed. Every vote will be checked individually in a scenario such as the one that the hon. Gentleman has described. If the returning officer were to check every postal vote, every one that did not comply with the personal identifier check would be disallowed. I think that that covers everything and I commend the order to the Committee.
Question put and agreed to.
That the Committee has considered the draft National Assembly for Wales (Representation of the People) Order 2007.
Committee rose at nine minutes past Five o’clock.

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