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Session 2008 - 09
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Public Bill Committee Debates

The Committee consisted of the following Members:

Chairman: Mr. Joe Benton
Brown, Mr. Russell (Dumfries and Galloway) (Lab)
Carmichael, Mr. Alistair (Orkney and Shetland) (LD)
Clarke, Mr. Tom (Coatbridge, Chryston and Bellshill) (Lab)
Crausby, Mr. David (Bolton, North-East) (Lab)
Dobbin, Jim (Heywood and Middleton) (Lab/Co-op)
Engel, Natascha (North-East Derbyshire) (Lab)
Gray, Mr. James (North Wiltshire) (Con)
Griffiths, Nigel (Edinburgh, South) (Lab)
Heppell, Mr. John (Nottingham, East) (Lab)
Holloway, Mr. Adam (Gravesham) (Con)
Hoyle, Mr. Lindsay (Chorley) (Lab)
Jack, Mr. Michael (Fylde) (Con)
McKechin, Ann (Parliamentary Under-Secretary of State for Scotland)
Swinson, Jo (East Dunbartonshire) (LD)
Wallace, Mr. Ben (Lancaster and Wyre) (Con)
Watkinson, Angela (Upminster) (Con)
Mark Etherton, Committee Clerk
† attended the Committee

Seventh Delegated Legislation Committee

Monday 26 October 2009

[Mr. Joe Benton in the Chair]

Motion Relating to Rule 56(1) of the Parliamentary Election Rules
4 pm
The Parliamentary Under-Secretary of State for Scotland (Ann McKechin): I beg to move,
That the Committee has considered the motion, That, in accordance with rule 56 (1) of the Parliamentary Election Rules contained in Schedule 1 to the Representation of the People Act 1983, the sealed packets containing the completed corresponding number lists forwarded to the sheriff clerk at Kirkcaldy following the Glenrothes by-election on 6 November 2008 (1) shall not be destroyed by the sheriff clerk other than as provided for in the protocol agreed among the Secretary of State for Scotland, the electoral registration officer for Fife, the returning officer for the Glenrothes parliamentary constituency and the sheriff clerk for the Kirkcaldy sheriff court district and dated 16 and 19 October 2009 (Cm 7729); (2) may be delivered by that sheriff clerk to that returning officer; and (3) may be opened by that returning officer in order that a substitute marked copy of the register of electors may be made available for public inspection, all in accordance with and subject to the conditions specified in that protocol.
It is a pleasure to serve under your chairmanship, Mr. Benton.
Many hon. Members will no doubt recall the unfortunate loss of the marked register of electors following the parliamentary by-election in Glenrothes in November 2008. The order arising from the motion that we are considering, together with the implementation of the associated protocol that has been laid before Parliament—I have made it available to Members today—will enable the creation of a substitute marked register for that by-election.
I will explain the background to the matter before going into more detail on the motion and protocol. At present, after a Westminster election has been contested in Scotland, election material, including the marked register, is sent by the constituency returning officer to the local sheriff clerk for safe keeping. The sheriff clerk is obliged to make some of the material available for public inspection and to destroy all the material after one year, unless otherwise ordered.
Following the Glenrothes by-election last year, a request was made for a copy of the marked register, but after a thorough search by the sheriff clerk’s office, it was found to be missing. Following representations by political parties, the chief executive of the Scottish Court Service—the Scottish Government agency that provides operational support to courts in Scotland—commissioned an independent investigation into the loss. The investigation’s terms of reference were rightly focused on the internal administration of Kirkcaldy sheriff court, which is a devolved matter. The investigation reported on 5 March 2009, and the findings have been published by the Scottish Court Service. Among other things, and most importantly, the report concluded that no malicious intent was identified with regard to either the loss of documents or the handling of the request.
During the review, representations were made to the investigating team to ask whether the marked register could be reconstructed. The report concluded that that was not a matter for the Scottish Court Service, but set out the position as understood by the investigator: it was not possible to recreate the marked register.
Following correspondence from the hon. Member for Moray (Angus Robertson), however, and given that the Electoral Commission supported the re-creation of the register, subject to overcoming any illegal and practical issues, I agreed to consider the matter further. Discussions have been held between Government legal advisers, the electoral registration officer, the returning officer, the sheriff clerk and the Electoral Commission with a view to re-creating the marked register. I have also spoken directly to the hon. Members for Dumfriesshire, Clydesdale and Tweeddale (David Mundell) and for Orkney and Shetland. They have considered the issues, and I thank them for their co-operation and understanding. I have also informed my hon. Friend the Member for Glenrothes (Lindsay Roy) of the deliberations.
The terms of the motion that we are considering, which is being made under rule 56(1) of the parliamentary election rules, and the steps set out in the protocol describe clearly how the substitute marked register will be created. They include all the necessary safeguards to ensure that the secrecy of the ballot is maintained and the personal information of electors is suitably protected. The signed protocol was developed in full consultation with the electoral registration officer, the returning officer, the sheriff clerk and the Electoral Commission. The substitute marked register will be retained by the sheriff clerk for a period of six months from the date it is delivered to him by the returning officer, and then destroyed. Importantly, it will be made available to prescribed persons, subject to certain conditions and safeguards, in the same way in which the original marked register would have been.
Some hon. Members will be aware that there have been difficulties with the present arrangements for some time, as sheriff clerks’ offices do not feel that they are set up to carry out those functions effectively. The is why, prior to the loss of the Glenrothes marked register, the Government had already proposed a change to the law to transfer responsibility for the storage of, and access to, UK election records from sheriff clerks to returning officers. That is already the position for documents relating to the European Parliament and local government elections in Scotland. We consulted on that proposal last year, and provision was subsequently made under section 25 of the Political Parties and Elections Act 2009, which received Royal Assent in July. It is intended that the provision will be commenced in March next year, after the necessary consequential regulations have been made. Similar provision will be made for Scottish Parliament election material through the Scottish Parliament (Elections etc.) (Amendment) Order 2009 before the 2011 elections.
The re-creation exercise has the full support of the Electoral Commission, and I commend the motion to the Committee.
4.5 pm
Mr. Ben Wallace (Lancaster and Wyre) (Con): I, too, welcome you to the Chair, Mr. Benton. I notice that most members of the Committee represent English constituencies. They will be pleased to see what they have been missing all these years on Committees dealing with Scottish statutory instruments as we consider the exciting subject before us today.
The Minister has made clear the reason behind the statutory instrument, to which the Conservatives have no objection. It is clear that the loss of the marked register was due to an unfortunate error by the sheriff clerk, and I note that the Electoral Commission’s February 2009 report said that it was pleased with the overall running of the election, with regard to both the encouragement of voter turnout and conduct on election day, so we have no concerns either.
I have a couple of questions to ask the Minister. First, was there a police investigation into the situation? The information held in a marked register is important and could be misused by those with criminal intent. Was the register lost in its entirety, or did parts of it go missing, with some remnants left? Is there any idea why it was lost or where it might have gone?
We in this country have well over 640 constituencies. It is a peculiar use of parliamentary time to be here today effectively to authorise the replication of a marked register. Is it worth exploring whether there is not a more delegated way to complete the process—either through sheriffs or through the Secretary of State—without recourse to Parliament? It would be awful if a number of marked registers went missing during a general election and we needed dozens of Committees to authorise their replication.
We do not object to the statutory instrument; we feel that it is important. As the son and grandson of men from Kirkcaldy—they all grew up there, apart from me—I bear no grudge to the people of Fife or Kirkcaldy that they lost the register. I believe that it was probably an accident, but I would be grateful for answers to my questions.
4.7 pm
Jo Swinson (East Dunbartonshire) (LD): It is a pleasure to serve under your chairmanship, Mr. Benton, to debate this special piece of legislation regarding the Glenrothes marked register. It strikes me that responsibility for elections is one of the few remaining powers reserved to the Scotland Office. In 2007 we saw the fiasco of votes not being counted properly, with many ballots spoiled, and we had the loss of the Glenrothes register in 2008. I hope that the trend will not continue, although I think that I am right in saying that the two incidents did not happen on the present Minister’s watch, so perhaps we can look forward to happier times for Scottish elections.
I seek clarity on a couple of issues. Obviously, when re-creating a marked register, preserving the integrity of the secret ballot is of paramount importance. I note that the protocol refers to CCNLs, which we are helpfully told are completed corresponding number lists. For those of us who are not quite au fait with all the different terminology, will the Minister explain further, perhaps in layman’s terms, what the CCNLs are? Am I right in thinking that, basically, the stubs from voting papers will be analysed rather than the ballot papers themselves? Clearly, if it were the ballot papers, issues would arise about the secrecy of the ballot. If she can reassure us that it will be the stubs, that should be fine.
Mr. James Gray (North Wiltshire) (Con): Has the hon. Lady noticed that paragraph 15 of the protocol helpfully says that, in order to preserve voter secrecy, the stubs or CCNLs will be sealed in a package? Paragraph 16 then says that the returning officer must do certain things, and paragraph 17 says that he can in fact unseal the package and have a look if he wants to. Is there not a question to be asked about the secrecy of the vote?
Jo Swinson: I am sure that the Minister will want to respond to that, although, as I said, if CCNLs are not the ballots themselves, that might give some reassurance. I look forward to the Minister’s response to that question.
Does the Minister know whether this has happened before—in Scotland or elsewhere? She might know that from discussions with colleagues in the Ministry of Justice or from the former Department for Constitutional Affairs. I hope that this is a very rare occurrence, but it would be of interest to know. Should it happen in the future, to pick up on the point raised by the hon. Member for Lancaster and Wyre, would we have to pass constituency-specific legislation on every occasion? Would it be more sensible to have a standard and common procedure that could be invoked in such circumstances?
There is no doubt that what happened to the marked register in Glenrothes was a worrying mistake. I am pleased that there has been a full investigation and that attempts have been made to put that right. Given that and with, I hope, some reassurance from the Minister on the points that I have raised, I am happy to support the motion.
4.10 pm
Ann McKechin: I thank the hon. Members for Lancaster and Wyre and for East Dunbartonshire for their comments and support. I make it clear that we are considering not a statutory instrument, but a motion. The present legislation does not permit the opening of packets. The Representation of the People Act 1983 would need to be amended to allow that, which is why we have to go through this procedure. However, I can say that, to the best of our knowledge, this is the first time that the process has been used in the House, and I certainly hope that it will not be repeated. It is one of the reasons why we have already legislated to remove the sheriff court from the process.
Angela Watkinson (Upminster) (Con): Will the Minister clarify something? The whereabouts of the original marked register are unknown. Should it unexpectedly reappear at some future time, would there have to be a process of verification to ensure that the original register and the second one were the same in every detail? If that was not the case, what procedure would follow?
Ann McKechin: This is an entirely separate procedure. With regard to whether the original register ever comes to light, it is due to be destroyed on 6 November 2009, so thereafter there would not be a comparison between that register and the register that we are proposing to recreate. We have to put in place an entirely separate process.
The hon. Member for Lancaster and Wyre asked whether there had been any police investigation—not as far as I am aware. The report that was made following the loss, which was obviously a civil process, concluded that there was no malicious intent. From that, there appears to be no indication of any criminal activity whatever. It is not clear why the register got lost or where it is now. Regrettably, when the investigation was carried out, staff at the sheriff court were unable to provide any likely explanation for its loss but, as I said, that is one of the reasons why we had already agreed to legislate to ensure that the sheriff court was no longer part of the process.
Mr. Wallace: I find it hard to envisage how it can be established that the register was not maliciously lost. If it had been shredded or lost due to damage, it could easily be established that it had not been stolen and that there had been an error. However, if it has just disappeared, it is very hard to establish whether someone stole it, whether it was put in the wrong bin or something else. I find it odd that it was so easy to establish that the loss was not malicious without any police involvement at all.
Ann McKechin: This points to why we now want the issue always to be with the returning officer. The sheriff courts in Scotland are, of course—[Interruption.] That must be a call from the Whips Office. The sheriff courts in Scotland are, of course, a devolved area of administration. The UK Government have no control or powers to exercise over the sheriff courts, and accordingly the investigation was carried out through the Scottish Government agency rather than our own. Accordingly, we were not in a position to comment further, beyond the fact that the report was delivered to us and we had a chance to examine it, as did everyone else, but it is obviously a matter of regret that no explanation—[Interruption.]
The Chairman: Order. Before the Minister proceeds, will everybody ensure that their phones are switched off?
Ann McKechin: I will try to remember where I left off before the various phone calls. As I said, only the marked register was missing—we were not aware at the time that any other documents were missing.
To respond to the hon. Member for East Dunbartonshire, the CCNL is a list of the numbers of the ballot papers and of the individual electors—in effect, it is probably what the hon. Lady called a stub.
There is no issue with the secrecy of the ballot, because the ballot papers are not opened. The ballot paper numbers will be redacted during the re-creation exercise. Present at the meeting will be a representative of the Electoral Commission, the returning officer, his or her staff and all the candidates who stood at the by-election or their representatives. The various political parties that were party to the by-election will be informed of the time and date of the meeting. We believe that that scrutiny will provide reassurance and give individual voters sufficient protection. We are clear that their secrecy must be protected at all times. However, as the Electoral Commission had clearly indicated that if we could re-create the register, we should go ahead with it, we felt that we should consider that request.
I have been advised by the returning officer that he hopes to complete the work within a week and that he estimates the cost at no more than £1,000. The expense to the public purse is therefore relatively minimal.
As I said, I certainly hope that there will be no repeat of this incident and that the changes that we have made in legislation this year will be an important means of ensuring that that is the case. I therefore hope that we will not need to bother Members and take up their valuable time in the way that we have unfortunately had to do this afternoon.
Question put and agreed to.
4.17 pm
Committee rose.

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