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Baroness Fookes: I support the amendment moved by my noble friend Lord Mackay. It is extremely important that the commission should be involved in all these pilot schemes, in association with the local authorities.

However, if the Government insist on keeping the "may" rather than the "shall", what would the position be if the commission wanted to be involved

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with a local authority scheme and the local authority refused? Who would have the powers in those circumstances?

Lord Norton of Louth: I rise briefly to support my noble friend's amendment. He made a very telling point about it.

Here we are setting up a body which has particular skills to look at electoral matters and it would be remiss not to draw on that on a consistent basis because this electoral commission will have skills which local authorities lack.

To determine the effect of these experiments requires fairly sophisticated tools. It is not sufficient to look only at where there is an increase in turn-out. That will not demonstrate a causal relationship between the experiment and the increase in turn-out. That could be for other reasons. It is necessary to look at the turn-out in adjoining authorities. There may be a 2 per cent increase where there has been an experiment but next-door, there is a 3 per cent increase and there has been no experiment.

There is a problem if it is the local authorities which must present the reports because they are likely to look at the matter in a fairly insular way and do not necessarily have the skills to undertake the task. They may not have the resources because there may be cost implications if the necessary surveys are to be undertaken; namely, to ask people why they are voting. That cannot necessarily be done, on the face of it, by looking only at the voting figures.

It is a fairly sophisticated task. The body which has been set up under this Bill will have the skills to undertake it. Local authorities do not. In order to look at the matter consistently, that duty should be imposed on the commission so that it can do that in relation to all the experiments and not on the basis of choice.

Lord Bach: It has been an extremely interesting debate on a very topical subject. Not surprisingly, the Government have not yet reached any conclusions, firm or otherwise, on the pilot schemes which were experimented with during the course of the past week or so. One reason is that the figures are only now coming to light and the figures as such do not in themselves necessarily give the correct answer, as the noble Lord, Lord Norton, made clear.

We can go this far, that the all-postal ballots scheme was the most encouraging of all the schemes which took place. I am happy to be able to tell the noble Lord, Lord Mackay of Ardbrecknish, that there is a ward in Stevenage, I believe, where the turn-out was 49 per cent, compared with 37 per cent in the rest of the borough. So that was over the 40 per cent which he mentioned. But on the face of it, the most encouraging sign so far is the all-postal ballots scheme.

There is little else that I want to say today, following the Starred Question and the discussion which we have had about the matter. The noble Lord, Lord Mackay of Ardbrecknish, referred to the moral male who would be filling in the votes when he should not be for his wife and son who were on holiday and he said that

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he thought it might be better if they voted for the same party. I am not sure that it would not be slightly more moral if they voted for different parties in those circumstances. But perhaps it does not matter because I am sure that there are not many people like that.

Clause 8 extends the functions of the commission so as to include a role in relation to pilot schemes. Section 10 of the Representation of the People Act 2000 makes provision for local authorities to bring forward proposals for pilot schemes for the purpose of testing electoral innovations, such as early voting and electronic voting at local government elections.

As Members of the Committee will be aware, 32 local authorities ran 38 pilots at the recent local elections in England. We shall have to wait before we come to any firm conclusions about them and as to whether any particular innovations should be rolled out nationally. But initial indications suggest that there were mixed results.

It is clearly right that the electoral commission should have a role in future pilots. This Bill already provides the commission with a broad remit in relation to electoral law, as was said in our debate on Amendment No. 29, and with a role in providing advice and assistance to other authorities in relation to electoral matters. It will also have an important role in promoting public participation in the democratic process. Those functions very clearly dovetail with the rationale behind the arrangements for the conduct of pilot schemes. The Bill therefore provides the commission with a clear role in relation to those arrangements.

Clause 8 provides that the commission may participate with a local authority in submitting proposals for a pilot scheme. We envisage that a local authority may wish to draw upon the knowledge and experience of the commission on the framing of the proposals and that the commission may have a particular interest in testing a particular innovation. Amendment No. 35, however, would require that the commission must participate with local authorities in the submission. We see no advantage in compelling the commission to co-sponsor each and every pilot scheme. We see some advantage in local authorities having the right, provided it is generally agreed by members of that local authority, to submit that it should have a pilot scheme in its area.

In any event, the idea that the commission must participate in the submission of proposals for pilot schemes sits rather oddly with the effect of Amendment No. 36, which would ensure that the commission had a role in scrutinising such proposals. In fact, this amendment adds little to the provisions of the Bill.

I would draw the noble Lord's attention to paragraph 14 of Schedule 20 which makes a number of amendments to Section 10 of the Representation of the People Act 2000. First, where the commission does not co-sponsor a pilot scheme, the Secretary of State will be required to consult the commission before making an order providing for the implementation of a pilot scheme put forward by a local authority on its own. So

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the commission will be in a position to scrutinise and offer its views on proposals which it has not itself been involved in preparing.

Secondly, the commission will itself be responsible for the preparation of the report on a particular pilot scheme which will include an assessment of the scheme's success. The 2000 Act does not provide for the "approval" of such an assessment. However, Section 11 of the Act enables the Secretary of State to roll-out a successful pilot scheme to local government elections generally. Paragraph 15 of Schedule 20 to this Bill amends Section 11 of the Representation of the People Act 2000 so as to provide that an order under that section may be made only on the recommendation of the electoral commission. So hidden away in the schedules of the Bill we go some way to meet the demands and wishes of a number of noble Lords. I hope that with that explanation the noble Lord will withdraw his amendment.

9 p.m.

Lord Mackay of Ardbrecknish: I am grateful to the Minister for that answer and for drawing my attention to Schedule 20. I am not sure whether I read that far, but as I have scribbled out something in the middle of page 179 I must have. Perhaps I did not realise the significance of the two amendments to the Representation of the People Act. From the Minister's explanation and from my brief read of it, I understand that the electoral commission will be fully involved if the Secretary of State ever decides to roll out an order--the most vital position--and that he would do so only on the recommendation of the electoral commission. That is good. I thank the Minister for drawing my attention to that. That goes some way to satisfy me.

If the electoral commission has to make a recommendation it will have to study the details of the pilot scheme before it can come to a conclusion. The reality will be that the electoral commission will look at every scheme just in case the Secretary of State decides to roll out one of them. It would be a pretty foolish local authority that did not involve the electoral commission in any experiment that it was running. The Minister has gone some way towards meeting my concerns and those of my noble friends. On that satisfied note, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 36 not moved.]

Clause 8 agreed to.

Lord Norton of Louth moved Amendment No. 37:

    After Clause 8, insert the following new clause--


    (" . The Commission shall, at the request of the sponsor of a Bill for an Act to provide for a referendum under section 97, give advice on the wording of the question or questions to be employed in that referendum.").

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The noble Lord said: In moving Amendment No. 37, I shall also speak to Amendment No. 225. If we are to have referendums it is important that they are conducted in a manner that is professional, rigorous, consistent and neutral. I believe that there will be general assent to that proposition. The electoral commission, under the terms of the Bill, is to be set up to assist in fulfilling those criteria. It is to make reports on the administration of referendums; it is to keep under review, and may issue reports on, matters relating to referendums; and it may issue advice on referendums, at least to certain bodies. I believe that the Bill should go further.

We are setting up a body that clearly is to have knowledge on the conduct of referendums, yet we are not explicitly drawing upon the services of that body to assist in one of the most difficult, if not the most difficult, tasks involved in any referendum: drawing up the question that is to be put to the people in that referendum.

At Second Reading I touched upon the problems involved in setting the question. It is crucial that the question is both neutral and unambiguous. Ensuring that a question is free of bias--not simply political bias--can be extremely difficult. At Second Reading one of my noble friends spoke of the need to produce a clear question to which people could answer a simple yes or no. My understanding is that that is not what one should do. There is no difficulty in agreeing that the question should be clear, but there is a problem in inviting a yes or no response. I gather that there is a propensity for some people to want to be positive and therefore to vote yes, which builds in a certain bias to the process. It is far better to put propositions and to ask voters to indicate with which one they agree.

Ensuring that a question is unambiguous is also a difficult task. I suspect that if the Minister wanted informed assent to that point, he need look no further than to his noble friend Lord McIntosh of Haringey, who in a previous incarnation in market research had to wrestle with that kind of problem. At Second Reading I touched on the problem of ensuring that the question does not permit of different interpretations. I drew attention to research that found a notable element of "mistaken" voting in some state referendums in the USA; that is, people voting contrary to how they thought they had voted. If that phenomenon is to be avoided, the question has to be clear and unambiguous. That may require pilot surveys and may not necessarily be achieved by debate alone in a legislative chamber.

Clearly, there is a case for drawing upon a body capable of offering informed advice. We are creating such a body under the terms of the Bill. I appreciate that this amendment is not necessary to give effect to the recommendations of the Neill committee but I believe it to be a reasonable and logical amendment in terms of what the Bill seeks to achieve.

Under Clause 9 the commission may offer advice and assistance on those matters in which it has skill and experience but it may do so only to relevant

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bodies. The relevant bodies are listed in Clause 9(5), and the British Parliament is not included, although every other national parliament is. Clause 9(3)(b) empowers the commission to,

    "provide advice and assistance to other persons which is incidental to, or otherwise connected with, the discharge by the Commission of their functions".

That may be taken to encompass giving advice on the wording of any question in a referendum, but it is not clear that it does so. I want to make the point explicit.

My amendment provides only that the commission shall give advice when requested to do so on the wording of a question. There is no requirement that that advice has to be accepted. The final say remains, as it must, with Parliament. The amendment seeks not to limit Parliament but to assist it in determining the question in any referendum.

Amendment No. 225 provides that the sponsor of a referendum Bill shall certify that the commission has been consulted on the question to be asked. It is up to the sponsor to decide what to do on the basis of that advice. Doubtless Parliament will want to know what use has been made of the advice.

At Second Reading the noble Lord, Lord Bassam of Brighton, indicated that the Government did not have a closed mind on the subject so long as any amendment did not give a decision-making power to the commission. I hope that is a fair representation of the Minister's position. I have no problems with the caveat that he entered. In the light of the argument that I have advanced, I hope that the Minister will give the amendment a fair wind. If he accepts it as it stands, I shall be delighted. If he indicates that it requires re-drafting, my basic point will be proved, as I did not seek advice on the wording. I beg to move.

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