Work of the Electoral Commission - Justice Committee Contents

Examination of Witnesses (Questions 1-65)


23 FEBRUARY 2010

  Chairman: Ms Watson, Mr Wardle and Mr Scallan, welcome. We are glad to have you with us again. Various members around the table have what are not really interests in the normal sense of the word, but you will know, I think, that Mr Heath and Dr Whitehead are members of the panel of people advising you. Is that right?

Dr Whitehead: The parliamentary panel of advisers, electoral.

  Q1  Mr Heath: We cannot remember the name.

  Jenny Watson: The parliamentary advisory group.

  Q2  Chairman: Mr Michael is a member of the Committee on Standards in Public Life which inquired into you, and of course I am, by virtue of being Chairman of this Committee, a member of the Speaker's Committee on the Electoral Commission, which gets to the point, amongst others, so we are very glad to see you today. The electoral law of the United Kingdom is now scattered across an enormous number of statutes. Is that a bad idea and ought it to be consolidated, and is it worth the effort to do so?

  Jenny Watson: The short answer to that would be yes. I hope you will forgive me, since it is the first opportunity that I have come before you, if I just make a couple of general remarks to put the rest of what I am going to say into context because I have not had the chance to do this before.

  Q3  Chairman: Yes, by all means.

  Jenny Watson: The Commission takes as its starting point that democratic politics is not an optional extra, it is a public good, and we see the need to tackle that question head-on. We need democratic politics because, as I think everybody in this room recognises, we disagree about how we might tackle the big questions that face us as a country and we see the parties' competing manifestos and programmes that we choose from as voters, indeed will choose from before too long, as not at all part of the problem, but part of a solution and part of a foundation for democratic politics in this country. Our approach to politics in this country is founded on having strong political parties, and that is a good thing. We are conscious that all of you, as political parties, are dependent on volunteers and we try to remember that in everything we do and make the rules as easy as we can. That brings me to your question. I think we would consider that a review of electoral law is certainly overdue. Indeed, in the last 10 years, we have had around 38 new pieces of legislation and many of those are things that are welcome.

  Q4  Chairman: Thirty-eight?

  Jenny Watson: Yes, it is obviously a significant amount. What I would stress to you is that we are running elections on a system that can cope, but it is coping. We are running 21st-Century elections on, effectively, a 19th-Century electoral administration system and that is beginning to show its age and it is not designed to support mass participation, and of course we now expect and anticipate that there will be mass participation with around 46 million people on the electoral register, so we would certainly want to see a debate about the future of electoral administration coming pretty soon actually after the General Election. I hope that whoever forms the Government after the General Election will be able to bring forward such a debate, and we could discuss in a bit more detail what that might need to look at.

  Q5  Chairman: How far have you got with your review because, following the Gould Report, you instituted a review of administration of elections, did you not?

  Jenny Watson: Yes, indeed, and we have published proposals, looking at reforming electoral administration, which suggested that we could build on what is already in place, taking into account the very strong local-level delivery, with electoral management boards which would, broadly speaking, build on the regional returning officer structures, and Andrew may want to say a little bit more about that, so we published those proposals some time ago and we are now waiting for that broader debate to emerge. Is there anything you would like to add to that, Andrew?

  Andrew Scallan: Just that the model that we suggested of electoral management boards builds on, as Jenny has said, the infrastructure that currently exists and has been now tested over a number of elections and preserves local identity, which we think is also very important, around elections and electoral registration, but gives a framework which is better than having 370-odd individuals operating individually without any co-ordination or control.

  Jenny Watson: But we might want to range more broadly than that to also think about things like giving voters a greater choice in the way that they cast their vote. Now that we have the advent of individual electoral registration, that gives us the possibility to move forward and think about e-voting, advance voting and those kinds of things.

  Q6  Alun Michael: I am just intrigued that you made this sort of pre-emptive strike in saying that we want a reform of the system where, and it will come out in later questioning, there are issues about the way in which the Electoral Commission has, over a number of years, failed to operate in a clear way as a regulator, particularly at the regional level within England, so calling for a debate is always very easy, but are there not two issues: one, using the powers and exercising the responsibilities that the Commission has; and, secondly, being clear what ought to be happening in order to inform a debate?

  Jenny Watson: Well, perhaps I am being loose in my language, so let me be clearer for your benefit. The proposals that we have put forward suggest that there should be electoral management boards introduced, and clearly that needs a response from Government in order to move that debate forward and, as yet—

  Q7  Alun Michael: At what level?

  Jenny Watson: Well, it would require—

  Q8  Alun Michael: No, I mean at what level would you want electoral management boards?

  Jenny Watson: As we just described, to sit based on the regional returning officer structure, so you would have a board which brought together at a regional level, or at a national level in terms of Scotland and Wales, a structure of returning officers and registration officers who might be better equipped not to reinvent the wheel.

  Q9  Alun Michael: Yes, but would that not be more convincing if you had done in the regions of England what has actually been very successful in Wales, but which the Commission failed to do?

  Jenny Watson: We do have regional offices in England and we have a regional lead, and again Andrew might want to say more about how that management is organised. I do not recognise the picture that you paint which suggests that we do not have strong links in the regions of England; we do. We have a performance standards framework which monitors the work of returning officers and registration officers, and both Andrew and Peter can talk in more detail operationally about how that is delivered and perhaps I should give them a chance to do so to make sure that the Committee is clear about how that works.

  Andrew Scallan: Just to deal with England, we do have regional leads, as Jenny has said, and they are responsible for liaising with the local authorities in their area and, as you know, the regions of England vary in size from about 12 authorities in the smallest region to 63, I think, in the largest, but we have very close links in those areas and we understand how they work. I would draw the distinction between the English regions and Wales and Scotland where the nature of our offices in Wales and Scotland is significantly different because they are dealing with different legislatures and dealing with different political parties, so there is a significantly different role for our offices—

  Alun Michael: Forgive me, but the issue of making sure there is equality of—

  Q10  Chairman: We are going to return to performance standards and I think Dr Whitehead wants to deal with that a little later, so I think I am going to park that performance standards issue.

  Peter Wardle: Perhaps I can just remind the Committee of an answer I gave in fact to Mr Michael the last time we appeared in 2008 before the Committee where I think I tried to say that the approach we take in England, which Andrew was just describing, was very much an attempt to reproduce all that was good about the experience we had had in Scotland, Wales and Northern Ireland, but not, as Andrew also says, with the need to interact with an elected legislature in those parts of the country, so all the things that the Wales Office does in relation to guidance, advice, co-ordination of the work of the returning officers and the Electoral Registration Office in Wales is exactly what we are now asking of people in our English offices and have been doing since we set them up two or three years ago.

  Q11  Alun Michael: So you are doing that on an English regional basis?

  Peter Wardle: Yes.

  Q12  Alun Michael: Regions as they are understood by everybody else?

  Peter Wardle: The Government Office regions, the European Parliament regions. We have been talking about the regional returning officers and they are the European parliamentary officers. Those regional returning officers, it is worth remembering, are not appointed simply for the period of a European election, but they are a permanent appointment, and what we are trying to do is build on that, so actually in Wales we have seen a much stronger co-ordination from the regional returning officer in Wales, but that is not the only place it is happening. In Scotland, there is a very strong move since 2007 and the Gould Report to have co-ordination at a national level across Scotland. Also, in some parts of England, and the South East springs to mind, we have got regional returning officers who were the regional returning officers in the European elections, but are continuing in that role to co-ordinate the work of returning officers in areas across their region very much with support from our regional offices as well.

  Q13  Chairman: If I can claim the floor for the moment and ask you a very broad question: how do you measure public confidence in the integrity of the system?

  Jenny Watson: We have a number of different ways of doing that. Specifically looking at different elections, we would generally produce a report post-election looking at the events of that election and that would include finding out views from voters, members of the public, as well as indeed from those who had sought election.

  Q14  Chairman: By surveys?

  Jenny Watson: Yes, opinion polling-type surveys and through that, for example, we know that at last year's European elections many people who did not vote, I think around a third, told us that they might have been more likely to vote if there had been some form of advance voting available to them, so at a polling station, say, the weekend before polling day itself, but we also do year on year something which we internally describe as our "winter tracker" which is again opinion polling which looks at a whole range of issues and assesses voters' confidence with those, so, for example, through that we know that the most important thing for people when casting their vote is that it is secure, but that is very closely followed by the fact that voting needs to be easy to do or convenient, so that is around a third each. We look at a whole range of issues like that and then from time to time we would do broader work on a specific project which engaged with voters.

  Q15  Chairman: I want to deal with a couple of specific questions, one of which arises from the Constitutional Reform and Governance Bill where an amendment was passed without debate, which requires returning officers to start the count within four hours of the close of the poll, unless there are exceptional circumstances. The Secretary of State has to prepare draft guidance, yes, "The Secretary of State shall, after consulting the Electoral Commission, prepare draft guidance on the definition of `exceptional circumstances' for this purpose". Do you think that exceptional circumstances, in your view when you are consulted, will include the circumstances of at least those authorities which currently count on the following day?

  Jenny Watson: Well, if I can, I will start that answer in a slightly different place. I think I understand the frustrations around the nature of a very fragmented system with some lack of co-ordination in terms of the delivery of elections, and I think there is some degree of a lack of accountability for returning officers which led to some of these concerns being raised, but we said at the time that we have real concerns about the workability of the amendment that was passed. I would think it would be extremely difficult to define a set of exceptional circumstances that could realistically stand and I think we would also have concerns about the timing of the amendment that has been passed in that it could possibly push people who have already had plans in place for some time to unpick those, which could put the delivery of the election in that area in a slightly higher risk category than it currently is. Now, we are talking to all parties about the workability of that amendment, and again Andrew may want to say more, but I think the broader point I would want to make which feeds into the conversation that I tried to start at the beginning is the need for a debate led by Government on how we organise electoral administration because the fundamental problem—

  Q16  Chairman: We have got to resolve this very specific one very quickly, have we not?

  Jenny Watson: We have.

  Q17  Chairman: Otherwise, as you say, they will be unpicking the arrangements they have already made.

  Andrew Scallan: But beyond that, after this election—

  Q18  Chairman: No, I do want you to clarify what is going to happen over this.

  Jenny Watson: Well, I do not think at this stage we know because, as I understand it, those discussions are still going on. We have concerns about the workability of that amendment. I think it would be completely reasonable for Government to ask returning officers to justify, with reasons, the decisions that they took about when they would count, and Peter may want to say more about what we did from last autumn to now in order to prepare to be at this place in the right way.

  Q19  Chairman: I think what is going to happen, you are doing your best to help with that, but of course the Bill could fall. We are very close to the end of the session and all sorts of arrangements to hire helicopters and so forth might be made and the amendment might never pass into law.

  Jenny Watson: That is true and I am genuinely trying to answer the question, but I think the answer from our side of the table at this point is that we do not yet know what will happen because with that amendment we have significant concerns about the workability, about its impact on the independence of returning officers and about how we would define "exceptional circumstances" in any way that would be workable. Andrew, do you want to say anything more about that specifically?

  Andrew Scallan: I think the only thing to say is it seems to me that the concern is not when a count starts, but when it finishes, and that is one of the flaws, I think, in the way the amendment is currently drafted because any count would probably start within four hours, but it is the length of time it takes to do the count and the resources that are put into it, so there are other issues as well around the drafting of the amendment.

  Q20  Chairman: Presumably, the returning officer has the power to adjourn the count if he decides it is going to go on for too long?

  Andrew Scallan: He or she has the power to adjourn, but with the consent of the agents present at the count.

  Jenny Watson: Our concern all the way through this has been to have a result that is delivered as soon as practicable and a result that is accurate, and there are particular circumstances at this election which may put additional difficulties in the way of that, which is why I was asking Peter if he wanted to say more about the letter that he wrote to returning officers back in the autumn on this issue.

  Peter Wardle: Simply to say that, when all this started to become an issue back in the autumn, in September we wrote to all the returning officers in the country, saying that they were going to be under pressure and under scrutiny this time round to explain the decisions they were taking. We reminded them of the sorts of issues that we would expect them to take into account and we reminded them of the need to explain those issues to their candidates' and parties' satisfaction locally. Some have done that well, some have done that not so well, and I think that was the point that Jenny was referring to in terms of some questions about the ability of the returning officers perhaps to take the accountability that goes with the responsibility of independence. Just to come back to your first point, it is true that on a practical level one of the most difficult things will be for those returning officers who have taken decisions for good reasons and explained them, why they are going to count on a Friday morning, who may now feel under pressure to change their position, and I would certainly hope that that is one of the key things the Government is looking at.

  Q21  Chairman: So is it your advice that they should wait while your further discussions go on before making drastic changes to their plans?

  Jenny Watson: Some of them have not yet decided when they intend to count, and I suspect that they will be waiting. We have just been trying to collect in as much more information as we can from people, from those who are currently undecided, but I think it is inevitably the case that there will be people who are starting to rethink their arrangements on the basis of this debate. Do you have any more intelligence on that, Andrew?

  Andrew Scallan: We published today on our website the details of the latest position and the decisions which have been made, and there are still 127 constituencies that are undecided and some are still waiting to see whether the election is combined on 6 May.

  Q22  Mr Heath: Not directly related to this, but just a very quick observation: I am a member of the Parliamentary Assembly of the Organisation of Security and Co-operation in Europe, I have done election-monitoring all over Europe and America and nobody has ever done an international observation in this country because it was against the law, but it is not now against the law, and I wonder whether the Commission has issued invitations yet to the international organisations to invite them to observe the next General Election?

  Andrew Scallan: We certainly have a list, working with the Foreign and Commonwealth Office, of organisations that would be invited, but I think one of the key features of the observer scheme is that it is open to anybody to apply to be an observer, whether invited by Government or not, and it is an essential underpinning principle of the observer scheme. We have recently simplified our observer scheme in terms of the application process and that was laid before the House a matter of weeks ago, but the principle is there and we will be inviting a range of organisations and have currently plans to have a system for briefing them on the process here.

  Peter Wardle: And the OSCE are already making plans to come.

  Q23  Mr Heath: The OSCE are probably the prime candidates, are they not?

  Peter Wardle: Yes, and they are already on their way.

  Jenny Watson: It is going to be a long journey!

  Q24  Chairman: One further point, before I move on to Mr Michael, is that this report yesterday in the Glasgow North by-election sort of gave you the opportunity—and I ask you as I have a personal interest in it—to clarify whether you are seeking fresh agreement or understanding between the parties or some other provision to limit the time that can elapse before a by-election takes place. I think the observation was made that the three-month convention has been in force for 35 years and that is because I was elected 36 years ago in a by-election which took six months to be brought into effect and the convention was devised in the immediate aftermath of the criticisms of that. Would you just like to clarify what you said in that report?

  Jenny Watson: Yes, I think what we were trying to do in that report was to draw attention to the fact that four and a half months had gone, partly because Parliament was in recess, without the ability for voters to go to the polls and elect a new MP, simply to draw that to the attention of Parliament to see if Parliament wants to revisit this issue again. Parliament can decide that it does not, but we felt that, in the interests of the voters, we should flag that issue and say, "This is longer than it has taken in the past and this may be time for Parliament to think about this again". Of course, I think we are all very sanguine of the fact that anybody would want to make sure that an election avoids obvious periods when people may not be around, like school holidays and things like that, which was the case in part in relation to Glasgow, but there is a broader point which is that this has not been, as you say, revisited for some time and it may be time to do so.

  Q25  Chairman: The Scottish school holidays are over by mid-August.

  Jenny Watson: Indeed.

  Q26  Alun Michael: Just on this whole business of the timing of the count, it is all very well to say that there is a flaw in the amendment that was put forward, but would you not accept that that amendment was one that had cross-party support and was, in many ways, a gesture of frustration that the issue had not been sorted out earlier?

  Jenny Watson: I share the frustration about the nature of the fragmented system. Returning officers in this country are independent and they are independent for a reason. We have no power to direct them, the Secretary of State has the power to direct them, and I would question, and I think the Secretary of State would probably question, the degree to which that is the right place for that power to sit. I can see the frustration that was there in Parliament with MPs feeling, "We would like to get the result as soon as possible", and of course volunteer activists have been busy, people have put their lives on hold to stand for a candidacy, of course we all understand that and, goodness knows, we all understand the excitement of it, but our concern is about the accuracy of the result, and I think it is legitimate for us to raise concerns about the workability of the amendment because we are now at the timeframe where to change existing plans that have been in place for some time may pose a risk.

  Q27  Alun Michael: I accept that there is that risk and one of the things about legislation generally is that it should be the last avenue that one takes on the grounds that unintended consequences follow from legislation, and that is a generalisation not just in this field, but things like the Dangerous Dogs Act and equivalents in other fields of legislation largely arise when there is a feeling, "Well, it hasn't been sorted". I accept your point that the power of direction lies with the Secretary of State and I also, by the way, think that your query about whether that is the right place is a very legitimate question to be asking. If we are going to learn lessons for the future though, does there not have to be a much more proactive way of getting to a sensible outcome than appears to have happened on this occasion?

  Jenny Watson: I think that is precisely what we were trying to do when we wrote to returning officers, when Peter wrote to them back in the autumn to say, "These are the circumstances, these are the factors you'll have to consider and you should be prepared to account for the decision at a local and at a national level".

  Q28  Alun Michael: Turning to another aspect, the mandate of the Commission essentially, until a couple of years ago, had three elements within it: the regulation of electoral administration; the regulation of party funding and campaign expenditure; and the other, if you like, softer elements of public education and engagement. We had the agreement a couple of years ago that the work of the Commission should focus very much on the first two of those. Has that actually happened and has the change in the way that you organise yourselves and the administrative changes and all of that worked their way through now completely?

  Jenny Watson: Yes, and I would say it is working well, and Peter may also want to comment, but, as I think you know, we are now very much more focused on seeing our part of the picture, if you like, in the broader sphere of democracy being about making sure that people know how to vote and know what they must do in order to be able to vote, so getting people on the register is something which we take very seriously and we then pass the baton to all of you to say that it is for you to inspire them to actually go and turn out to vote. We do take that very seriously indeed, and that has enabled us to focus our spending and focus how we deliver our public awareness campaigns, I think, very effectively and we get a pretty good bang for our buck. If you look across Government, we are one of the most effective use of resources in terms of those campaigns, so that has delivered, and our objectives for this year have gone down to only two, so regulating party finance, transparency and integrity of party finance, and well-run elections, referendums and registrations. Peter do you want to add anything to that?

  Peter Wardle: Just that, as an indication of that, as Sir Alan will know from his work on the Speaker's Committee, we have managed to keep our overall budget reasonably flat since I have been at the Commission, but, if you look at how much we spent on public awareness in my first year in the Commission, 2005-06, we spent around £7 million on the campaign around the General Election in 2005, and we are planning to spend only about £4½ million in the 2010 election and that is because it is all focused on registration and we are no longer doing any work on simply, "Isn't it a good thing to vote?" and so on because, as we discussed at the CSPL hearings and elsewhere, I think we share the view of many others that what gets people out to vote is actually the issues and the candidates, not an independent body saying that it is a good idea.

  Q29  Alun Michael: So, given that focus of your expenditure, have you got the resources that are necessary? Tied to that, we know that we are going to be in a very difficult public expenditure environment over the next couple of years, so how are you planning to cope with that, whether it is in terms of efficiency savings or the focus of your resources?

  Jenny Watson: Well, again I am going to let Peter pick up most of that question. I will say that the Board are acutely conscious of the nature of the current public spending cycle. I think we currently cost around 52p per elector, which I think actually is not bad in terms of what we deliver and, if we can deliver that more efficiently, then we will of course do so. Peter, do you want to say a little bit more about the process by which we get those resources?

  Peter Wardle: There is not a great deal more to say, but we are expecting next year, as in previous years, to keep our spending down, in fact to do that and also to fund from within the overall envelope the cost of spinning off the Boundary Committee, which was one of the recommendations of CSPL, which will now happen on 1 April and they will have to be established as an independent body and that will have some initial set-up costs, but we are still managing to do that. Next year, we will be continuing to keep our budget around the same as it has been in previous years. It is very clear from the discussions we have had or the Treasury advice that has gone into the Speaker's Committee in that process that, when we are looking beyond next year, all bets will be off, and that is no great surprise to us and we are obviously looking at what our options will be and listening to what various politicians of various political parties seem to think might be the environment, but I do not think we can expect to be exempt from the general pressure on public expenditure.

  Q30  Alun Michael: Can we focus in on that question of registration now. I have always been very clear that registration is a means to an end, it is not an end in itself. The fact is that the right is the right to vote and, unless people are registered, they cannot exercise that right. How do you think that you are doing in improving both the level of registration and the consistency of a high level of registration across, particularly, England and Wales?

  Jenny Watson: Well, there are a number of ways in which we would do that. Some of that would be through our public awareness campaigns. For example, in the run-up to this parliamentary General Election, we will be running a multi-media public awareness campaign which is heavily targeted at those people who are less likely to be registered to vote, so I would ask all of you to bear with us: if you do not see it, that is because you are not the target and it does not mean it is not happening. The campaign that we ran in the run-up to the European elections had a very successful strike rate, if you like, and I think we had 150,000 voter registration forms downloaded. Of course, the other side of what we do, and this must be right because the responsibility for getting people on to the register broadly rests with registration officers, is through our performance standards and driving up the standards there.

  Q31  Alun Michael: That is the part I was most concerned about, going back to the comments earlier about driving up the standard at a regional level and the lessons to be learned for Wales which was not anything to do with the Assembly, but was to do with the fact that there was a Welsh Office, a regional office and a Commission very, very clearly focused on building a higher performance of quality.

  Jenny Watson: Absolutely.

  Q32  Alun Michael: But there still are inconsistencies, are there not?

  Jenny Watson: There are, and I will ask Andrew to say a bit more about it. What I would say is that we are just about to publish in fact our second year of performance standards monitoring for registration officers in the next few weeks, so we will send you a copy of that.

  Andrew Scallan: On the work that we have been doing with electoral registration officers, we have a huge range of material for them to look at for practice, we give them a lot of detailed advice and we remind them of precisely what the law is that they are required to follow, and at the end of this week, by the way, the ONS will be publishing the details for last year's register, the 1 December register, so we produce a range of material. It is very clear from the work that we have been doing on performance that people understand the need to have plans in place because one of the problems, as you will know, in some of the smaller authorities is that they are very dependent on very few human resources to run their electoral registration, so we have a range of material and, for those people who have not been performing on performance standards, we have revisited all the electoral registration officers and agreed an action plan for improvement.

  Jenny Watson: Again, that has been done through regional offices.

  Q33  Alun Michael: You focused the comments though on providing material enabling support. Obviously, you are about to publish a report which may answer the question that I am asking, but I think there is a lot of frustration among some colleagues about the fact that there has not been a success in driving up the level of registration in their areas and a feeling that perhaps not enough is being done to really insist, require and push electoral registration officers and the local authorities that employ them, by the way, because of course particularly on the resource issue there is quite a bit of variation there between authorities, that this is not an optional extra, this is an absolutely basic responsibility of local authorities, yet there still seems to be a soft edge to it. As I say, your report may answer some of that.

  Jenny Watson: It will answer some of those questions and you will forgive me for not going into more detail about it now, but there are still some finishing touches being put to it. Andrew is absolutely right to say that 58 electoral registration officers who did not meet the standard got a one-to-one visit and were told, I would say, to pull their socks up, though my colleagues might be more polite, so that is happening. Some of that is in the context of, "Is there more help we can give you because we have got all this material here and this is what's expected and look, you're really going to need to do a bit more to get there". Peter, do you want to add anything to that?

  Peter Wardle: Just to say that the first year, last year, established a baseline, and we have talked about this in a number of contexts, but we did not know their level of performance. It looked very much at the level where people were doing the things they ought to be doing as an absolute minimum and also the extent to which they were following the good practice that we recommend, and there were some areas where people were really falling down and they were particularly in relation to work around the integrity of the register and work about promoting participation, so, if you like, the two classic sides of registration. We have made it very clear to them in the conversations we have been having that we expect to see an improvement in year two, and that is what this report will be about. We have still got no powers to insist or require, as you suggest, but we have certainly got powers to persuade and name and shame, and I think in year two, if there has not been the progress that we want to see, we would be much less reticent about drawing that to people's attention, including local politicians and council leaders.

  Jenny Watson: We have had discussions with the Local Government Association and with local authority leaders, taking in mind your point about the resources, because they do need to be, I think, more aware of what is going on, and I know that these are statutorily independent officers, but certainly they do need to be more aware.

  Q34  Alun Michael: Certainly, there is a lot of feeling that there is a need for the Commission to feel confident and to be robust and push the limits on this.

  Jenny Watson: Indeed.

  Q35  Alun Michael: One of the elements where again there is cross-party agreement is on a move towards individual voter registration. Now, as I said, it is the right to vote which is the essential right, not the right of registration which is merely a mechanism, but, on the other hand, if we want to move to individual voter registration, there has to be a really robust and dependable register on which to make that move, and that is one of the things which drives the urgency. How close do you think you are to the quality of the register being sufficient to take the risk of making that move, because there is a risk that people get lost, as we saw in Northern Ireland, numbers do get lost off the register in that changeover, but nevertheless, there is a will to do it which, as I understand it, the Commission shares?

  Jenny Watson: Indeed, and we now have, through the Political Parties and Elections Act, a timetable set out to move to individual electoral registration with, I think, an important role for us in monitoring the progress towards that. We have often talked about this in terms of both completeness and accuracy, which I think comes back to the point that you are referring to.

  Q36  Alun Michael: Absolutely.

  Jenny Watson: A complete register has to be accurate and it cannot be accurate unless it is complete, so those two things are often set up as polar opposites and actually they are not, they are very similar.

  Alun Michael: I agree with you entirely on that.

  Q37  Julie Morgan: I wanted to ask you about the proposed referendum on electoral reform, which has recently been agreed on in the House of Commons, and really to ask you what will be the key considerations that you will look at when you are deciding to form the question?

  Jenny Watson: Well, strictly speaking, I should say of course that we do not form the question, that what we do is comment on the question that is put to us, but I think what we would do, and we have recently set this out clearly for people to see, is to conduct a process that really engages with voters because actually it is voters that are going to have to understand the question and be able to make an informed judgment about the question. What we would seek to be doing, I suspect, and I know it is a fairly unpopular term, is a fairly substantial amount of focus group research of engaging the voters and seeing how they approach that question and seeing if they thought, when they had gone through the process, they would cast their vote in the way they had intended to at the beginning of it. We would anticipate that that process would take us about 10 weeks from start to finish. We would also of course want to engage with any nascent campaign groups that would be out there and with political parties and others who were interested, but the bulk of the evidence that would inform our view would be from that voter testing.

  Q38  Julie Morgan: So, with focus groups, would you present a possible question and then have feedback from the focus groups?

  Jenny Watson: Well, the question will be put, so it will not be us coming up with a question to put to voters, but the question would be put by the Government and we would then test that question and make sure that we gave comments on it, and we would also want to make sure, I think, that it was in plain English.

  Q39  Julie Morgan: So the Government would come forward with a proposed question and you would then test that out on the focus groups?

  Jenny Watson: Yes.

  Q40  Julie Morgan: So it is for the Government to choose the question?

  Jenny Watson: Exactly, and then we would give our views publicly and in a very transparent way on that question. Now, it may be at the end of the process that we say, "This is a very fine question and voters understood every word of it", or it may be that we say, as indeed we did in the question around the North East referendum, that there were some things that needed to be changed to make that process as comprehensible as it could be.

  Q41  Julie Morgan: And the fact that this may not divide on party lines, does that cause any additional complications?

  Jenny Watson: Not from the perspective of the testing of the question, but it is the case that, in order to register as a permitted participant for the purpose of a referendum campaign itself, if a political party wanted to do that, it would have to tell us the outcome for which it was campaigning. If it could not do that, then it could not register as a permitted participant, so that is a stage further down the track, if you like.

  Q42  Julie Morgan: And you have to establish the lead campaign organisations?

  Jenny Watson: We have to designate the organisations who would form the "yes" and "no" campaigns, yes, and our proposition for doing that would be that we would look for umbrella organisations that could command a breadth of public support, I think, in the first instance.

  Q43  Julie Morgan: So the leading organisations would be the biggest ones or?

  Jenny Watson: They would be the designated "yes" and "no" campaigns. We have to designate both or neither, so we cannot just say, "Oh yes, there's a great `yes' campaign, but there isn't a `no' campaign". Other people who would want to spend more than £10,000 in the campaign would have to register with us as a permitted participant in order to do that. Do you want to add anything else to that?

  Andrew Scallan: Not to that, but I think I would just say that in terms of the framing of the question we would hope that any Government would look at the guidelines that we have published to help frame the question.

  Q44  Julie Morgan: I think that you have also the duty of promoting public awareness about the referendum. Is that one of the duties that have been given to you?

  Peter Wardle: Strictly speaking, we would hope so, but that has to be legislated for on a referendum-by-referendum basis, so we had that duty for the North East referendum and we will have it for the referendum that is currently being discussed in Wales on the powers of the Assembly, and we have made it very clear that we would want to have a similar power in the event of a UK-wide referendum.

  Q45  Julie Morgan: Do you have the resources to do that effectively?

  Jenny Watson: Well, we would have to go to the Speaker's Committee and set out to them the fact that there was a planned referendum and ask for additional resources. Again, Peter may want to say more about the process by which we do that, but in our current budget we would not be able to tackle an issue of a UK-wide referendum, but I think the Speaker's Committee understands that we will come back on a case-by-case basis.

  Q46  Julie Morgan: The amendment also says that you may take whatever steps you think are appropriate to provide information about each of the two voting systems, so how do you interpret that provision?

  Jenny Watson: Well, I think we would want to look at that against the context of whether or not we had designated "yes" and "no" campaigns to run referendum campaigns beyond that, so I do not want to seem to be avoiding the question, but everything will be considered in the specific context. We may well decide that it would be useful for us for there to be another source of advice and information beyond the "yes" and "no" campaigns which looks at the different systems and says to people, "This is how they work" and which is a very objective provision of information, but I think we would want to look at that in that context.

  Q47  Julie Morgan: Would you see yourselves as collecting misleading information?

  Jenny Watson: Put out by the "yes" or "no" campaigns?

  Q48  Julie Morgan: Yes.

  Jenny Watson: Well, again I think we would have to look at that during the course of a referendum campaign, but the principle would be that those "yes" and "no" campaigns would be out there mobilising support for the outcomes that they would want to see and that more objective information might be there to try and fill in some of the gaps or to present a different view.

  Q49  Julie Morgan: Do you welcome the challenge of this referendum?

  Jenny Watson: I always welcome the challenge of a referendum! I think we are preparing for it, and we are also, as Peter already alluded to, preparing for a potential referendum in Wales. There are big differences in our role in a referendum than there are in our role in an election. We have a very different role; we are the chief counting officer in a referendum and we do provide direct advice and guidance. There are other powers that we would like to see come to us during the course of the legislation that brings the referendum legislation to reality, but it is a very different role and it is a much less fragmented role than that which exists within an election. Of course, it is just as important during a referendum period that people are on the electoral register because, just as they cannot vote in an election unless they are on the register, they cannot vote in a referendum unless they are on the register, so yes, we welcome the challenge and we are up for it.

  Q50  Julie Morgan: You have mentioned the two referendums, the possible Welsh one and the national reform one. With those two different sorts of subjects, do you approach it in a different way?

  Jenny Watson: The basic premise would be the same, that the question needs to be understood by the voters because they are the people who are going to engage with the question. That is the absolutely key thing.

  Q51  Mrs Riordan: Without wishing to prejudice the forthcoming debate, what responsibility does the Commission have to make an assessment of the potential and likely impacts of a switch to, for instance, an alternative vote system on voter awareness, electoral registration, turnout and the proportion of valid votes as opposed to those who are confused with the new system and spoiled ballot papers?

  Jenny Watson: Well, there is a question! I should make it very clear that, whilst we welcome the challenge of running a referendum, we would not come down on one side or other of the debate. Andrew, you have been giving some thought to, if there were to be a "yes" vote, what that outcome might entail for those who run elections.

  Andrew Scallan: If there were to be a "yes" vote in the referendum and the change were to be brought in, I think we need to remember that we have already got five voting systems, electoral systems, operating in the UK on which we give advice and guidance to returning officers and public awareness to the voter, so I think what we would then have is a sixth and for us then the task is essentially one of public awareness to make sure the voters understood what they were doing. From an administrative point of view for returning officers, there would again clearly need to be a range of material and guidance produced, but we are used to having different electoral systems, I have to say. Sometimes, there have been issues when the electoral systems have been combined, but we are used to providing suites of guidance to the staff who are there to administer them.

  Q52  Mrs Riordan: And the turnout—any comments on that?

  Jenny Watson: I do not think we could begin to comment.

  Peter Wardle: There is no particular evidence, I think, that we have seen that turnout is particularly driven by different electoral systems. If you look around the country at the same elections to the same assemblies held under different electoral systems, I am not aware of any very conclusive evidence that says that people are more likely to turn out using one electoral system than another, but that is an ongoing subject of debate and the difficulty is that turnout is such a combination of different factors that it is very hard to isolate the impact of an electoral system. Some people would argue that the electoral system has an impact and some would say it absolutely does not and is completely dwarfed by other factors.

  Q53  Mrs Riordan: So what lessons are there from previous elections within the UK, say, for the London Mayor, or elsewhere on the impact of a switch to an AV system on voter participation and the number of spoiled ballot papers? Are there any lessons?

  Andrew Scallan: The numbers are not significant. I cannot remember the figures, but, if they had been significant, I am sure I would have remembered them. The task is a clear explanation both in the build-up to the election and within the polling station itself to make sure that the staff fully understand what they are saying to voters when they vote, but there are not, I think, significant issues around spoiled ballot papers.

  Q54  Mr Heath: Can I move on to party funding. Are you on top of it and are the parties on top of it?

  Jenny Watson: That is another good question. I think we have a good and effective system of regulating it. We are starting to deal with this and are very busy at the moment. I think in the last quarter we answered around 500 queries and requests for information, so I am tempted to say, "There must be an election coming along"! We do take it very seriously and we publish regular information. I think what will immeasurably help us, when we finally get them, is the new powers and sanctions that are bestowed on us through the PPE Act. I understand that the Statutory Instrument that was laid before the House has been withdrawn due to a legal drafting problem and that will not now be tabled before the election. Now, we are working to an implementation date for the majority of those powers and sanctions of 1 July and it would be really important to us that that comes through quickly after the election because of course all political parties will need clarity and we are providing guidance for people on what they should be doing under the new system and how we intend to enforce, but without the powers.

  Q55  Mr Heath: And it is daft, is it not, not having the powers before the election, yet alone delay it even further beyond July?

  Jenny Watson: Well, I think I would take issue with you on that because I think one of the things we have said very clearly in the past is that there should be at least a six-month gap in terms of anything electoral between legislation and implementation, and that applies to powers we would like to use just as much as it applies to anything else, so I am happy with 1 July, but that is the date to which we are now working and it does make it rather tight post-election. I think that new suite of civil sanctions and civil powers, including things like compliance notices to say to parties, "Can you put in place a better system than currently exists?" and stop notices, will be really important potentially during a referendum campaign when you perhaps have organisations that are not like parties with a long tradition of wanting to keep their reputations squeaky clean and they may be less tempted to comply with legislation, we need that kind of power.

  Q56  Mr Heath: Is there not a problem at the moment that, without the new suite of civil sanctions, effectively you can only really hit hard some poor honorary treasurer in a little branch of a political party who is desperately trying to comply and cannot because he cannot get his figures in the right order? Does that not give a real problem actually to helping them, and I am not talking about the professional people in the party headquarters, I am talking about the voluntary parties?

  Jenny Watson: I do not think any of us would try and pretend that the powers that we have now are ideal; that is why we wanted the new powers and we made that argument very strongly. One of the things that our enforcement policy consultation, which is the process we ran indeed in consultation with volunteer treasurers, enabled us to say is, "With this new suite of civil sanctions, this is how we will use them" and, by the way, we have never come down like a tonne of bricks on a poor voluntary treasurer anyway, so it did enable us to get that message out.

  Q57  Mr Heath: But they are frightened that you will, are they not, still?

  Jenny Watson: I am sure they are and this will be better. The fact that we have been able to share the way that we will approach it with them and be reassured that they now understand our approach and will continue to issue that guidance, I think that is very helpful. We would like the powers by 1 July and, if there is anything you can do to raise those points, we would be most grateful to you.

  Q58  Mr Heath: I would love to do that. Are there any glaring holes that you see at the moment in the regulation either on the donations side or the expenditure side where the parties, I know perfectly well, have a talent for finding these holes and using them? Is there something you would like us to be doing to close a loophole?

  Jenny Watson: I think at the moment perhaps I could leave it that the new powers are most welcome. We always keep the legislation under review and it may be that we have more to say about that in due course.

  Q59  Dr Whitehead: Could I ask some questions on integrity and also the role of returning officers in preparation for elections and standards. You published a report in June 2009 on electoral malpractice, particularly relating to the 2009 elections. I think there were two convictions eventually out of something like 107 allegations of malpractice which arose in 2009. What sort of malpractices were both alleged and convicted?

  Jenny Watson: My memory from the European elections is that it was rather fewer than that actually. I thought it was around 48.

  Q60  Dr Whitehead: Sorry, it is 48 cases out of 107 allegations.

  Jenny Watson: We use that very broadly, and I am going to ask Andrew to pick that up. This is an area where we remain vigilant, so we might also, if you have the time, take the opportunity to talk to you about what we are doing with returning officers and the police.

  Andrew Scallan: There was a range of offence types and they are all spelt out in the report in some detail. A large number of them were to do with electoral malpractice, but might have included, for example, the imprint on documents which, if we go back many years, is one of the least serious of electoral crimes. Of the 107 figure, 23 of those allegations related to a ballot paper that someone had photocopied in Aylesbury, so it is simply a very crude attempt to manipulate the system where a ballot paper had literally been photocopied and sent in, but, because it was taken seriously, it appears in the statistics. There was a range of issues and with a number of them no further action was taken by the police and there have been some convictions, and again they are all spelt out in the report. There is not anything more that we can update on the report that we actually published in January this year. In our June report on the European elections, we put the headline figures in, and the report that we published in January sets out in detail what happened with all the cases and also updates our report from 2008 on the offences that had been reported during elections then.

  Q61  Dr Whitehead: To what extent would you say that those electoral malpractices particularly focused on postal voting? Obviously, that relates to the claim that postal voting is vulnerable to fraud, but to what extent did you find in those particular prosecutions and claims that that was indeed a focus of fraud?

  Andrew Scallan: There were very few that related to postal voting. The postal voting system is so much more secure than it was before the 2006 Act gave provisions, so now it is very difficult for anyone to steal someone else's postal vote in the way that they had been previously because the signature and date of birth are required. One of the things that we have talked about is that there are some vulnerabilities in the system, and individual electoral registration will close that particular vulnerability, so it should ensure better integrity of the whole system.

  Jenny Watson: But, having said that, I think we would all recognise that the European election is a different type of election with a very much larger constituency and possibly less temptation to those who might commit fraud, and we will be vigilant in the run-up to this election which could be combined with local elections, which is a slightly different animal, and Peter may want to say a little more about what we are doing with the police in relation to that area.

  Peter Wardle: Yes, very briefly just to say that we are getting very good co-operation these days from the police. If you think back five years or so, the police were very afraid to tread in a lot of areas on something that they saw as political. Nowadays, every police force has got an expert within the force who will take responsibility for that. ACPO have appointed a lead, as have ACPO Scotland, and we have seen some very good examples of returning officers and local police forces working together to risk-assess their elections in the same way as they would risk-assess anything else. Actually, the police are bringing some very useful skills to that process which returning officers perhaps were not so used to, so I think we are seeing much more vigilance, and certainly in the areas where people have seen concerns and risks they are acting very visibly to try to prevent it. One of the things the police have learnt literally to their cost is that prevention is very much better than cure when it comes to dealing with electoral offences.

  Jenny Watson: Certainly, it is very welcome that the Ministry of Justice will provide funding in this election for 100% of absent voter identifier checking. We would still like them to mandate that, but the funding is very welcome.

  Q62  Dr Whitehead: Turning to returning officers themselves, you also published a report on the extent to which returning officers were meeting performance standards, and I think the April 2009 report was the first assessment of that, and you mentioned that in your written evidence to us, but in that written evidence you also referred to failures in some places, particularly in terms of plans for public awareness and participation, and also indeed to some gaps in the identification of electoral malpractice among returning officers. What assessment have you made, particularly relating to the previous issues of electoral malpractice, of what are the genuine risks to the integrity of the system in those areas?

  Jenny Watson: I am going to ask Andrew to pick that up, but, before I do, I am going to take the opportunity to correct something that I said earlier where I have been looking for an opportunity and have not had, which is of course that the Secretary of State cannot direct returning officers, but can only direct electoral registration officers, so that gives me the opportunity to put that on the record. Andrew, would you like to pick up the question.

  Andrew Scallan: In terms of returning officers, the approach we have taken to their performance standards has been very similar to the one we have with electoral registration officers that, where there have been failures, there have been personal interviews with the returning officers. A lot of our performance standards are actually about making sure there is an infrastructure in place within local authorities, so it has been about having plans in place for all the activities that form part of the performance standards and integrity has been one, and it applies to others as well, that because a plan is not in place does not mean that work is not going on, but it is just that it is not well-documented and there is not a clear plan of action. For those who have not had plans in place, we have visited them and, I have to say, they have typically been areas where they have not felt impacted by electoral malpractice in the past, which of course is a very complacent way to react to that. The message that Peter has said, that prevention is better than prosecution, as we describe it in the report, is because you never know when it is going to happen and, when it does happen, it takes up a huge amount of resource both from the local authority and from the police force, so we have visited all the returning officers. We doubled our efforts with ACPO and with local police forces to make sure that they were working very closely with local authorities to make sure that they had their plans in place and that they were able to respond and, very importantly, the police are attending candidates' and agents' meetings and making sure that people understand that the police forces are aware of electoral malpractice in a way that historically they have not.

  Q63  Dr Whitehead: When you say you have visited, you state in your evidence that you contacted all 58 EROs who did not meet the standards for completeness and accuracy in 2009. Would they have been the subject of a visit, those 58?

  Jenny Watson: Of the EROs, yes. As we were saying earlier on, yes, each one of those will have had a visit, but we have also followed up with returning officers who did not meet the standards.

  Q64  Dr Whitehead: Were those visits made public? Is there a public record of what was said in those visits and what transpired, or were they, shall we say, under cover?

  Jenny Watson: Well, they were not secret visits, to put it like that. The information about who meets the performance standards and who does not is available on our website, so it is there, and I think what you will see when we publish the next report on performance standards for electoral registration officers is any change against that, let us say, and we are writing to local authority leaders to make sure that they know in their authority how the electoral registration officers and returning officers are performing, and sometimes that is an uneasy relationship, but they should know.

  Q65  Dr Whitehead: The implication of the 58 EROs who did not meet the standards is that there are 58 registers that are incomplete and inaccurate, by turning your statement in your evidence around, and I presume that, should there be 58 incomplete and inaccurate registers, that would be a matter of some considerable concern.

  Jenny Watson: I think if you took the point more broadly, which we have made before, that we estimate that there are 3.5 million people, 8% to 9%, who are not on the electoral register, I am afraid I think it is a rather larger number of registers than that that we know and could say, hand on heart, are not complete and accurate. That is the system with which we are working, and again individual registration, to refer to Mr Michael's question earlier on, will help with that because it will give, for example, the ability to do some greater data-matching to try and see if there are better ways of working out and other ways of working out other people that could be on your register that are not. What we will do as we develop the performance standards, bearing in mind they are only in year two this year, is look at outcomes as well as outputs in terms of plans, and that is part of the development work.

  Peter Wardle: There are, very broadly and very simplistically, two reasons why a register is incomplete and inaccurate. One is because the electors do not do something and the other is because the electoral registration officers do not do something, and our focus on the performance standards is very much on making sure the EROs are doing everything they can so that problems with the register cannot be put down to their inactivity and lack of attempts to do things. However, as Jenny says, we need also then to look at those areas where, even though the ERO is doing everything they should be, we have still got very low levels of registration and that is where we need to start looking much more imaginatively at whether there are other things, including potentially legislative changes, that would make their task easier. If you have got an ERO who really is trying their hardest, is well-resourced and yet is still achieving low levels of registration, and we have never known that with any certainty until we have had the performance standards and we have started to do this manual tracking, but I am sure that it is going to be an ongoing process. We are not simply going to rest on our laurels when everybody is meeting the basic standards and say, "Everything must be fine now; there is nothing more we can do", but I see it very much as saying that, as long as we have got them up to standard doing everything they should, then we need to look at what other factors are contributing to the fact that their register is not where it should be.

  Jenny Watson: And I would expect us to be raising the bar as we move forward, and I would also expect, as we go through the voluntary phases of individual electoral registration, that our monitoring and the way we present that would be sufficient to make sure that we can give a picture in different local areas rather than a very generalised wash across the country because it will not look like that and it will be particular areas where we will need to focus.

  Chairman: At which point we must move on to another session, so thank you very much.

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