House of Lords - Explanatory Note
      
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Session 2003 - 04
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European Parliamentary And Local Elections (Pilots) Bill


 

These notes refer to the European Parliamentary And Local Elections (Pilots) Bill
as brought from the House of Commons on 17th December 2003 [HL Bill 14]

EUROPEAN PARLIAMENTARY AND LOCAL ELECTIONS (PILOTS) BILL

     


     EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the European Parliamentary and Local Elections (Pilots) Bill as brought from the House of Commons on 17th December 2003. They have been prepared by the Department for Constitutional Affairs in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.

2.     These notes should be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.

SUMMARY

3.     This Bill extends to Great Britain. It does not extend to Northern Ireland.

4.     The purpose of the Bill is to provide for piloting of innovative voting methods:

    a)     at the European Parliamentary general election of 2004.

    b)     at local government elections where these are combined with the European Parliamentary general election of 2004.

BACKGROUND

5.     The government intends to move the date of the local government elections in England, currently due in May 2004, to be on the same date as that year's European Parliamentary general election. The power to do this exists under the Local Government Act 2003, which received Royal Assent on 18th September 2003.The National Assembly for Wales recently ran a consultation on combination. The results, published on 28th November, confirmed that the elections in Wales would also be combined.

6.     Under section 10 of the Representation of the People Act 2000, local authorities in England and Wales are able to submit a proposal to the Secretary of State to run pilot schemes of innovative electoral procedures at local government elections. Section 10 was couched in broad terms to cover various innovative voting methods, and pilot schemes have been held both for all-postal and 'multi-channelled' voting (which may include electronic voting). Ministers intend to continue the programme of pilot voting as part of a programme working towards a multi-channelled, e-enabled general election some time after 2006. Piloting at next year's European Parliamentary elections would represent a scaling up from previous schemes and would be a further step towards this goal.

7.     However, there are no legislative provisions for piloting of innovative voting in relation to European Parliamentary elections. The Bill is intended to fill that gap, for the 2004 elections only, so that piloting can take place.

8.     This Bill:

  • allows the Secretary of State to order innovative voting methods to be piloted in one or more European Parliamentary electoral regions in the 2004 European Parliamentary general election, and at local elections combined with European elections in those regions;

  • does not specify the regions to hold the pilots, but explicitly rules out consideration of London and whichever European Parliamentary electoral region is to include Gibraltar (the Electoral Commission has recommended this to be South West Region). The Bill does not extend to Northern Ireland and so it cannot be a region for the purposes of holding pilots;

  • does not specify the types of innovative voting to be carried out in each region. The identity of the regions, and the type of voting to be used in each, will be for the Secretary of State, with Parliament's approval and in consultation with the Electoral Commission, to decide. The Electoral Commission has now made its detailed recommendations, which are available at www.electoralcommission.org.uk.

TERRITORIAL APPLICATION: WALES

9.     The Bill applies to Wales. The Secretary of State may by order under the Bill designate Wales as a region under which innovative methods of voting may be piloted in the European Parliamentary elections or combined local government and European Parliamentary elections of 2004. The Bill provides that the Presiding Officer in Wales must not fix the date of the poll for a by-election to the National Assembly for Wales to be held on the same date as the European Parliamentary elections. Clause 8 and schedule 1 are relevant in relation to this.

     COMMENTARY ON CLAUSES

     Clause 1: Piloting conduct at European and local elections

10.     This clause provides for a power for the Secretary of State to make an order requiring that the European Parliamentary general election of 2004 should, in certain regions, be conducted in a manner differing from the normal procedure. An order made under this clause would set out the region or regions in which piloting is to occur and, in broad terms, the manner in which the election is to be conducted in each region. The Secretary of State must not make an order under this clause unless he has consulted the Electoral Commission. Any such order will also apply to any combined local elections taking place in the region or regions selected. By virtue of clause 10, this order is to be subject to affirmative resolution procedure.

     Clause 2: Pilot order

11.     This clause requires the Secretary of State to make a supplementary order to implement and give effect to any order under clause 1 above. This order would contain the details of the manner in which the elections may differ from the way in which they would be normally be run. The order must also provide that, before the close of the poll, the returning officer must provide to specified persons information as to which electors appear to have cast a vote. The Secretary of State is required to send copies of the order to the local authorities to be involved in the pilots, the Electoral Commission, and the relevant Regional Returning Officers. Local authorities must then publish the order in their area in such manner as they think fit. An order made under this clause is not subject to Parliamentary procedure.

     Clause 3: Pilot schemes under the 2000 Act

12.     This clause disapplies section 10 of the Representation of the People Act 2000 ("RPA 2000"), under which local authorities can apply to use innovative voting methods in local government elections, for any local government election held on the same day as the European Parliamentary general election of 2004. This is important in order to contain costs and to retain other elections as a 'control' with which pilot results can be compared.

Clause 4: Electoral Commission report

13.     This clause extends the Electoral Commission's duties so that not only must the Commission report on the election in general, but also on the pilot itself, including the impact of providing information as to which electors appear to have cast their vote (polling progress information). This reflects the Commission's duty to report on pilot schemes that may take place under section 10 RPA 2000 and is included in order that the success, or otherwise, of pilot schemes can be properly evaluated.

          Clause 5: Revision of procedures in light of report

14.     This clause ensures that section 11 RPA 2000 may be used with respect to local government elections held under this Bill. Section 11 RPA 2000 provides that if the Secretary of State considers that any of the pilot provisions in the Pilot Order under the RPA 2000 should be applied generally on a permanent basis to local government elections in England and Wales, he can do so by an order that is subject to affirmative resolution. In effect then, this clause simply aims to ensure that lessons learned in these pilots may be applied to any future roll-out of innovative voting methods at local elections.

     Clause 6: Personation: arrestable offence

15.     This clause extends the powers of arrest for the offence of personation (when someone votes as someone else but without their consent). The existing power of arrest is restricted to arrest in relation to personation at polling stations, and this provision reflects a recommendation by the Electoral Commission that the police be given the power of arrest at any location. This would only apply to regions where piloting is taking place under the Bill and solely to the 2004 European Parliamentary and combined local government elections. Although there has no specific evidence of an increase in fraud at previous pilots, this clause is included in order to address security concerns surrounding innovative voting methods in general.

     Clause 7: Time limit for prosecution of offences

16.     This clause provides that the magistrates' court is given a power to allow, on application from the police or a prosecutor, an extension of time up to a maximum of 24 months after the date of the offence for a prosecution to be commenced. The application must not be granted unless the court is satisfied that there are exceptional circumstances requiring the application to be granted, and that the investigation of the offence has been pursued with all reasonable diligence. Existing legislation provides that the prosecution for any offence under the Representation of the People Act is commenced within one year after the offence was committed. This provision again reflects a recommendation by the Electoral Commission, and would again apply only to regions where piloting is taking place under the Bill and solely to the 2004 European Parliamentary and combined local government elections.

     Clause 8: By-elections

     17.     This clause gives effect to schedule 1. This prevents Westminster by-elections, by-elections for the National Assembly for Wales, mayoral referendums, elections and by-elections, and local government by-elections in England and Wales, from taking place on the day of the European Parliamentary general election in 2004, or at any time within three weeks (or four weeks in respect of local government by-elections) before or three weeks after that date. With respect to local government by-elections in England and Wales, further provision is made to enable the date of the poll for a by-election to be changed in the order. This is to allow for the possibility of local by-elections, as with ordinary local government elections in England and Wales, to be held on the same day as the European election and combined, but still ensuring that there is a window of time around the European elections if it is decided that they are not combined. If Scotland is chosen as a region under section 1, the order under section 1 may disapply the local returning officers discretion as to whether to combine Scottish local by-elections with the European elections.

     FINANCIAL EFFECTS OF THE BILL

18.     The additional overall cost to Central Government flowing from the Bill is estimated to be up to £30m. Actual costs will be dependent on the types of piloting and regions chosen by the Secretary of State after consultation with the Electoral Commission.

     PUBLIC SERVICE MANPOWER

19.     The Bill will not lead to any changes in the staff of Government Departments and their agencies or local authorities.

     SUMMARY OF REGULATORY APPRAISAL

20.     No Regulatory Impact Assessment is needed for this Bill as there will be no direct or indirect regulatory burdens on business, charities or the voluntary sector.

     COMMENCEMENT

21.     The Bill has no commencement provision. The effect is that the Bill comes into force on Royal Assent.

     EUROPEAN CONVENTION ON HUMAN RIGHTS

22.     Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House to make a statement before Second Reading on the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). The Lord Falconer of Thoroton has made the following statement under section 19(1)(a):

    "In my view the provisions of the European Parliamentary and Local Elections (Pilots) Bill are compatible with the Convention rights."

23.     The principal Convention right that may be engaged by the Bill is Article 3 of Protocol 1 (right to free elections). In the light of Matthews v UK (28 EHRR 361), the Government recognises that the European Parliament is part of the legislature for the purposes of Article 3. Any electoral system that undermines the secrecy of the ballot, or the free expression of the electorate's opinion, would therefore raise an issue under that Article.

24.     The effect of the innovative voting systems on the secrecy, security and accessibility of the ballot is something on which the piloting scheme is designed to generate evidence, in order that decisions on the wider use of these or other systems can be proportionate and soundly based.

25.     The scheme will also produce evidence on any effect the innovative schemes may have on voter participation, and similar wider benefits to the community. These matters will also be relevant to the consideration of any issue under Article 3.

26.     In the meantime, the piloting scheme addresses the issue of secrecy with a number of safeguards, both statutory and non-statutory.

27.     The Bill also enables political parties to be provided, before close of poll, with 'polling progress information'. This will be information as to which electors have participated in the election by returning their ballot. In the case of all postal voting, the information will be gathered at the stage the envelopes containing ballot papers are received by electoral administrators and so will not be a confirmation that a valid vote has been received but simply that the elector has participated. This information will allow parties and candidates to ensure their resources are directed to canvass electors who have not yet participated and, thus more effectively engage the electorate overall.

28.     This may raise issues under article 8(1) of the Convention, in particular the right to respect for private life, under Article 3 of Protocol 1 (right to free election by secret ballot) and Article 14 (prohibition on discrimination). The Department considers that it would be compatible with the convention rights for political parties to be provided with such polling progress information in the circumstances proposed. The Department maintains that any interference with privacy caused by letting political parties know who has participated is minimal, given that political parties will be canvassing even if the polling progress information is not provided, and given the public nature of the traditional form of voting (i.e. going to a polling station).

29.     In any event, any such interference is justified and proportionate. Allowing access to this information would pursue a legitimate objective under Article 8(2) of encouraging people to vote, by allowing political parties to use their resources more effectively, increasing the engagement of the electorate with the political processes, and increasing turnout. Any interference with the rights protected by Article 8 (2) would be proportionate, because the information was to be used for limited purposes, the proposal was being introduced on a limited basis and to allow the government to assess whether the provision of the polling progress information achieves its objectives of increasing the engagement of the electorate and thus increasing turnout.

     30. This provision would also engage Article 3 of Protocol 1 (free elections) because it would make the right to vote conditional upon acquiescence in the provision of the information to political parties and candidates. Article 14, read with Article 3 of Protocol 1, would also be engaged. However the interference is considered justified and proportionate, taking into account the considerations under Article 8 listed under paragraph 29 above.

 
 
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Prepared: 18 December 2003