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The Earl of Mar and Kellie moved Amendment No. 75A:

Page 6, line 5, after ("provision") insert ("other than provision relating to electoral offences").

The noble Earl said: We come to a grouping dealing with amendments to the powers of the Secretary of State to make provision about elections. In moving this amendment, I shall speak also to Amendment No. 253A. Both of these amendments were suggested to me by the Law Society of Scotland.

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The purpose of Amendment No. 75A is merely to probe the extent to which criminal offences, under the Representation of the People Acts and other electoral legislation, may be applied to Scottish parliamentary elections by order of the Secretary of State.

The Secretary of State's wide regulatory powers under this measure require to be more closely defined. That is particularly so in respect of whether the criminal consequences of electoral fraud and similar issues can be applied by way of an order alone.

Amendment No. 253A is an amendment to Clause 40, which deals with calculating the time for the meeting of parliament. The amendment provides a clarification that public thanksgiving and public mourning are defined as being that, both in Scotland and in the United Kingdom. I beg to move.

The Earl of Balfour: Amendment No. 77 in my name relates to this matter. I took the amendment straight out of the Government of Wales Bill, from its equivalent to Clause 11.

Clause 11 commences with the words:

    "The Secretary of State may by order make provision as to ... the conduct of elections",

and so on. I feel the clause should spell out that criminal offences under the Representation of the People Acts and other electoral legislation may be applied to Scottish parliamentary elections by a Secretary of State's order. The Secretary of State's wide regulatory powers under this measure require to be more clearly defined, particularly in respect of whether the criminal consequences of electoral fraud and other similar issues are covered. I hope Ministers will bear that in mind.

As the amendment is grouped with Amendment No. 253A, it brings my mind to something rather different. The amendment is on page 28 of the Marshalled List, and is related to Clause 40. That clause, on page 18 of the Bill, deals with calculating the time for meeting of the parliament, as has already been pointed out by the noble Earl, Lord Mar and Kellie. However, I ask the Committee to turn to page 83 of the Bill, Schedule 5, Part II, Head 11, Section 5--Time. I am not sure that the amendment proposed by the noble Earl would fit in with either a devolved or non-devolved point under that. I shall repeat the reference: page 83, Schedule 5, Part II, Head 11, Section 5--Time.

Lord Mackay of Drumadoon: The amendments moved so far are grouped with others in my name: Amendments Nos. 76, 79, 80, 81, 82 and 83. This is a series of minor amendments designed to bring about certain small but potentially important alterations in the Secretary of State's order-making powers in relation to the laying down of rules for the conduct of elections.

Amendment No. 76 prevents the rules from making provision for disregarding alterations in the register of electors. If the register has been made up in accordance with the rules or altered in accordance with the rules, it does not appear that there could be any good reason why, for the purposes of conducting either a general election under the Bill or a by-election for a constituency member, a returning officer or anyone else

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should be given the alternative of disregarding alterations to the register that have been competently carried out.

Amendment No. 79 would require any rules relating to the countermanding or abandoning of elections which had been called to require an order from a sheriff rather than to be left to the administrative decision of the returning officer. Such events as the countermanding or abandoning of an election are likely to occur only infrequently. In those circumstances it seems better that the matter should be under judicial control so that any party who may wish to object to the making of such an order has the opportunity for a prompt hearing before the sheriff. Presumably that could be done by way of a summary application.

Amendment No. 80 is an amendment suggested and supported by the Law Society of Scotland and is arguably one of the more important ones in this grouping. It seeks to prevent the Secretary of State creating new criminal offences by secondary legislation. The power it is currently proposed to give to the Secretary of State is open-ended and, as my noble friend Lord Balfour indicated, it is one that needs to be more closely defined. If electoral fraud or other criminal conduct connected with elections is to be controlled, then this Parliament should lay down the necessary offences as it has done on previous occasions; for example, in the Representation of the People Acts.

The Bill as currently framed proposes that orders made by the Secretary of State under the order-making power shall be by way of affirmative resolution procedure. Indeed, in the memoranda submitted to the Delegated Powers Scrutiny Committee of your Lordships' House by the Scottish Office, it was stated that the matters to be dealt with in the order in relation to such offences are sufficiently important to merit the scrutiny which will follow in consequence of being debated in both Houses.

That is undoubtedly correct. But the problem is, as Members of the Committee will be aware, that, while the affirmative resolution procedure allows debate, it does not permit amendment of the order being debated. It seems wrong in principle for new electoral offences to be approved by your Lordships' House without it being possible to have them open to scrutiny and, if appropriate, amendment. Clause 101(9), which limits the penalties which can be imposed, does not go far enough to constitute sufficient protection for addressing the issue raised by the Law Society.

Finally, Amendments Nos. 81 to 83 seek to remove reference to the European Parliamentary Elections Act 1978 and other references to the European parliamentary elections from Clause 11. The Scottish parliament is to be a parliamentary body within the United Kingdom. I suggest that elections to the parliament be regulated so far as possible according to the law relating to the elections to this Parliament and that it is not necessary to involve any reference to elections to the European Parliament.

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11 p.m.

Lord Hardie: I note that Amendments Nos. 75A and 80 to 82 are probing amendments to see how we intend to use the order-making powers to determine the conduct of elections. I appreciate the reasons for such probing amendments.

I should advise the Committee that the Government have already begun discussion with opposition parties and electoral practitioners aimed at devising the arrangements for the conduct of polls. The outcome of those discussions will influence the order which is ultimately provided.

Turning to the amendments, there is a focus in Amendments Nos. 75A, 77 and 80 in particular on election offences. We are aware that there is concern about what our intentions are in respect of those and why we wish the order to deal with them. We need to be able to draw on existing provisions governing the conduct of elections, including those for election offences, in setting out the rules for election to the parliament. I do not believe that Members of the Committee would disagree with that approach thus far. But it is also necessary, because of the changes, to make provision to take account of things which are new in the Bill--notably the introduction of the additional member. Therefore, we need the flexibility which Clause 11 provides. As the noble and learned Lord, Lord Mackay of Drumadoon, has observed, the Bill stipulates that the order will be subject to affirmative resolution. It will be subject to the scrutiny of both Houses of Parliament. Noble Lords and Members of another place will have an opportunity to discuss the details of the proposals. There is nothing unusual in enabling offences to be created by secondary legislation, particularly where it is to be by way of order subject to affirmative resolution.

Our basic approach will be to follow commonsense and previous practice in all the issues to be covered in the order. We are not going to start afresh. We shall look at the existing provisions. As I have already said, as far as we can we shall adapt them to meet the new situations. We shall obviously rely upon the previous practice which has served us well in the past. For that reason, we have drafted the Bill to provide the powers and flexibility which will enable us to do that.

Amendment No. 76 seeks to prevent the order-making provision for disregarding alterations in the register of electors. For parliamentary and local government elections, Section 11(3) of the Representation of the People Act 1983 provides that alterations to registers which are made on or after the date on which notice of an election is given do not have effect for the purpose of that election. There are good reasons for having a cut-off point. For example, there has to be a cut-off date to allow for the effective processing of absent vote applications. The system of having a cut-off point for alterations to the register has worked well in the past and we can see no reason to change it now. Clause 11(2)(b) will enable us to do that.

As to Amendment No. 79, it appears that the intention is to enable an election to be challenged before the poll has taken place. If my understanding is correct, we would resist this amendment. The present approach is

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that elections, generally speaking, are allowed to take place and are then challenged after the event. I accept that there is provision for countermanding or abandoning polls at present--for example, where the candidate dies--but that is not subject to judicial control; it happens automatically. It occurs only in that special situation, without the need for the intervention of the court. We see no compelling reason to change the approach for elections to the Scottish parliament.

As to Amendment No. 253A, the noble Earl, Lord Mar and Kellie, addresses the issue of how the periods between the elections to the parliament and its first day of sitting should be calculated. The noble Lord is particularly concerned about the treatment of days of mourning and thanksgiving.

Perhaps I may deal with the interesting point raised by the noble Earl, Lord Balfour, about the inter-relationship between Schedule 5 and this amendment. I had not thought of the point until it was raised by the noble Earl. It is an interesting proposition. Fortunately, it is not necessary for me to give any view on that this evening.

Clause 40 applies for the purposes of Clause 2 and Clause 3 of the Bill, which provide that after a general election the parliament must meet within a period of seven days beginning on the day immediately following the poll at that election. However, in calculating that period certain days must be disregarded. They are specified as Saturdays, Sundays, Christmas Eve, Christmas Day, Good Friday, Bank Holidays in Scotland, and days appointed for public thanksgiving or mourning.

As I understand the concern of the noble Earl, Lord Mar and Kellie, it is that the Bill should make it clear that all days of thanksgiving or mourning in Scotland shall be disregarded whether they apply in Scotland only or to the UK as a whole. The noble Earl may be pleased to know that it is our view that his amendment is unnecessary. As matters stand, references in electoral law already applying to Scotland, both for national and local elections, refer simply to days of mourning or thanksgiving, without the need being seen for any further qualification.

In practice, of course, days of mourning and thanksgiving have always been used to mark only the most significant of events, which are of the widest importance. I cannot think of any occasion in recent history when separate arrangements for such days have been felt to be appropriate for Scotland as opposed to the rest of the United Kingdom.

This group of amendments has raised a number of interesting points and provoked a constructive and stimulating debate. We appreciate that in certain respects the detailed rules about elections to the Scottish parliament will require to depart from the model of existing electoral legislation, not least because of the innovative aspects of some of our proposals for those elections such as the additional member system. However, we intend, in the main, to build on tried and

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tested procedures. We believe that Clause 11 as drafted at present will give us appropriate powers for those purposes and there are appropriate safeguards for your Lordships to supervise and scrutinise the order at the appropriate time. In those circumstances, I would urge the noble Earl to withdraw the amendment.

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