CLAUSE 13.—(Effect of register, etc.) (Hansard, 20 April 1948)

§ The Under-Secretary of State for the Home Department (Mr. Younger)
I beg to move, in page 16, line 6, to leave out from "ground," to "otherwise," in line 7, and to insert: of his being or having on the qualifying date or the date of his appointment, as the case may be, been not a British subject or not of full age or. 1637 The purpose of this Amendment is to bring the wording of the Clause into line with that of two earlier Clauses—Clause 1, which relates to the entitlement of an elector to vote, and Clause 10, which relates to the entitlement of a proxy to vote by extending the reference to incapacity on the qualifying date, or, in the case of a proxy, at the time of his appointment. It seems clear that Clause 13, which deals with the same topic, should, in declaring incapacity to vote, also take account of the two dates, and the new words which we propose to insert have that effect.

§ Mr. Henry Strauss (Combined English Universities)
The words which it is sought to put in seem to me to constitute almost a record in difficult and clumsy draftsmanship. The words which it is proposed to insert run as follows: of his being or having on the qualifying date or the date of his appointment, as the case may be, been not. … The separation of "having" and "been" in this fantastic sentence seems to exceed the limits of poor draftsmanship to which we have descended in this House. With a little trouble, the right hon. Gentleman and his advisers could carry out their purpose and carry it out correctly in the English language. Instead of "on the ground of" they might have put it "on the ground that he is not or was not on the qualifying date. …" It is quite easy to put it in that alternative manner and to make it run easily. I beg the right hon. Gentleman, if he is right in the general purpose of his words, to look at the language again.

§ The Secretary of State for the Home Department (Mr. Ede)
I had somewhat the same difficulty as the hon. and learned Member for the Combined English Universities (Mr. H. Strauss), but he is a lawyer and I am not. He is entitled to criticise draftsmanship from the legal point of view, and I am not. I regret this desire on the part of draftsmen, when we get to the use of the verb in its perfect form, to try to get phrases between parts of the verb "to have," or "to be." I will for my own sake consider whether it is possible to put this in some such form as the hon. and learned Gentleman has suggested. I think that the purpose of the Amendment is quite clear.

§ Mr. Godfrey Nicholson (Farnham)
It is curious phrasing to read "having … been not a British subject" when it might read "not been a British subject."

§ Mr. Ede
I think that difficulty can be got over.

§ Mr. Binns (Gillingham)
I have an Amendment down to this Clause, which has not been called, in page 16, line 5, leave out from "be," to "he," in line 6, and insert "entitled to vote if," to which, perhaps, I might be allowed to refer. The Clause provides that the person registering as a Parliamentary voter should not be prevented from voting even if he is under age. In the past, there have been certain enactments, which in this Bill have been repealed, and which in fact did prevent any person who by inadvertence had been included in the register, from voting. If an infant in arms were brought to the polling booth, that infant could be disqualified, but under this Bill, Section 7 of the William III Act and Section 7 of the Ballot Act, 1872, have been repealed— That no person whatsoever being under the age of one and twenty years, shall at any time hereafter be admitted to give his voice for election of any Member or Members to serve in this present, or any future Parliament … Those Acts were previously taken into account by the returning officers and infants were not allowed to vote. I speak on behalf of the Metropolitan Borough Standing joint Committee, which has 28 town clerks normally concerned with these elections, and it appears to us that what has been done is merely to give grounds for the rejection of the vote on scrutiny, instead of rejecting the vote prior to it actually being carried out, which seems the most sensible and reasonable way of doing it.

§ Mr. Ede
It is true that the hon. Member for Gillingham (Mr. Binns) has raised a point concerning which the law is being altered. It is all very well to say that this would permit an infant in arms to vote, but it also prevents that from happening., If the presiding officer—it is not the returning officer who is involved—at the poll, let us say at a quarter to nine 1639 at night, suspects that a person coming forward is an alien who has wrongly got on to the register, or is a person who was 20 years and 11 months on the qualifying date, and that person wanted to start an argument with him as to whether he was rightly on the register or not, he might hold up a long queue of electors who were desiring to vote, some of whom might be excluded from voting while this adjudication was going on. I cannot think that that would be right. It may have been all very well in he days of His Majesty King William III, for whom the hon. Member for the Queen's University of Belfast (Professor Savory) has such great veneration, when the number of electors was very small, and, in addition, the poll was open for several days and the voting was at the hustings. We are now living in very different times. I think that the proper thing to say is that the person whose name is on the register has an entitlement to vote at the election. If the name has wrongly got on to the register, it may very well be a ground for petition and scrutiny, but I suggest that, in a practical world, it is necessary to remove the old law and to substitute the new.

§ Mr. Binns
In a practical world it has actually happened that infants have found their way on to the register. I am only concerned about the presiding officer in the cases of infants still in swaddling clothes, and of his own safety. I am willing to leave this matter, under the circumstances, to the right hon. Gentleman if he prefers to have that sort of thing happening.

§ Mr. Nicholson
If the name of the person voting was on the register as being 20 years and 11 months old, that might provide grounds for a petition. Surely, he has a right to know where he stands.

§ Mr. Ede
The vote of one unqualified person in an election in which the majority was 10,000 or 15,000 would not in itself lead to the election being questioned.

§ Mr. Nicholson
The Home Secretary is no doubt basing his remarks on majorities as small as, say, 25. One hon. Member, in fact, was elected to Parliament by a majority of only four. Elections will be 1640 rendered unfair; people will go round making minute investigations, asking the ages of ladies and committing other indiscretions. It is dangerous to pass a Bill which would lay open the way for the maximum amount of complication and uncertainty.

§ Mr. Ede
The fact that an unqualified—

§ Mr. Nicholson
Not qualified, but on the register.

§ Mr. Ede
The fact that a person whose name was on the register and who was unqualified but voted would happen in an insufficient number of cases to affect the result of the election. That has always been a ground for a petition.

Mr. McKie (Galloway)
I should like to say one or two words by way of criticism and to ask one or two questions of the Home Secretary. I do not think that any hon. Member on either side of the Committee will deny that the whole purpose of this Clause involves a somewhat radical departure from previous electoral procedure. The whole purpose of the Clause is to dispense, if necessary, with the casting vote of the returning officer. It is provided that, in the event of the numbers between candidates being equal, the returning officer shall not in future, as in the past, have recourse to the casting vote, but that the tying candidates shall proceed to draw lots. That is a point to which I take serious exception. The Home Secretary, on reflection, will probably see that he may be in danger—to put it no higher than that—of running counter to the wishes of a good many people in electoral and political bodies. After all, the casting vote allows for cases where the numbers are equal, and one hon. Member has referred to a few members elected to the present Parliament by a very narrow margin. I can think of two hon. Gentlemen who were in this position. They were, I think, the hon. Member for Caithness and Sutherland (Mr. Gandar Dower) and the hon. Member for Worcester (Mr. G. Ward) who were elected by margins of less than 10 votes. This shows that, even in these days of universal suffrage, a draw is not out of the question.
In the past the decision who was to be the winning candidate to be returned to Parliament in the event of numbers being 1641 equal has always been left to the returning officer. It has been left to his discretion to say how he thinks the question should be dealt with. Although it is entirely within his province how he should exercise his casting vote, it has, in the past, undoubtedly been laid down and well defined that, in the event of the sitting Member tying with his rival, the casting vote should be given in favour of the sitting Member.

Mr. McKie
I notice that the Home Secretary shakes his head, but, in favour of the maintenance of the status quo, I can say that if one of the two winning candidates belongs to the party in possession of the seat—hon. Gentlemen on the other side of the Committee will have sympathy with what I have said—in the past the returning officer would have given his vote in accordance with the maintenance of the status quo, in order that the party which had previously held the seat should continue to hold it. If the Clause is agreed to we shall be very seriously interfering with that well-accepted principle because, in the future, lots will have to be cast.
My first question to the Home Secretary is to ask him how he proposes that these lots shall be cast—by tossing a coin or by cutting through the pack? I am amazed that anything which savours of the gambling principle should be agreed to by a right hon. Gentleman on the other side of the Committee. In the past he or his colleagues have said that they will never be in favour of anything approaching a State lottery. I am not in favour of anything like a State lottery, but I am amazed that the Home Secretary, who. I understand, is a Nonconformist—I understand there is such a thing as a Nonconformist conscience, although I do not understand much about Nonconformity myself—recommends us to agree to the gambling principle in the form of tossing coins, whatever other method it may be, in the event of numbers being equal at an election.
The Home Secretary would be well advised to tell the Committee why he and the Government have seen fit to incorporate this Clause in the Bill. It goes further because, even in the case of an election petition, Subsection (2) provides that the casting of lots in the event of 1642 a petition shall be resorted to by the court. It will be very much more difficult for a court to cast lots than even the two individual candidates, who are equal rivals, in the event of no election petition being presented. That is another matter on which I hope the Home Secretary will have something to say when he replies.
I think I am perfectly entitled to say, on arguing the Clause in general, that, once a principle has been agreed to in this Committee, it seldom stops there. This was made clear—I say this by way of illustration—with regard to the recent provision for the Special Contribution in the Budget Resolutions. If the Committee sees fit to agree to this Clause being added to the Bill, we might quite easily seriously infringe upon the whole principle of the exercise of the casting vote in general. It might even be that in future somebody seated in the Chair, or occupying an even more exalted position, might not be able to exercise his casting vote. For the benefit of hon. Gentlemen on the other side of the Committee, who are perhaps not as familiar as I am with Parliamentary procedure, I can say that three times in my experience have I seen the casting vote exercised by the occupant of the Chair. I should be very sorry to agree to anything which would make for the infringement of the casting vote in general, particularly as far as Parliament is concerned. I should hate to think that in the future we should see the Leader of the House and the Leader of the Opposition—the occupant of the Chair being barred from exercising a casting vote—spinning coins or casting lots across the Table. I hope that the Home Secretary will have something to say also about these matters.
I realise that at present the right hon. Gentleman is in a difficult position and recently was unable to give a very clear decision. I refer to the special Clause in the Criminal Justice Bill. I realise that the right hon. Gentleman's conscience is somewhat tender on these matters in coming to a decision—perhaps that is why he is such a ready accessory to this Clause. The right hon. Gentleman will no doubt remember that: "Conscience doth make cowards of us all." I hope that he will show better reason this afternoon than he did the other night for the incorporation of that other Clause.

§ Mr. Marlowe (Brighton)
I would like to reinforce one point which has been made by my hon. Friend. I hope that the Home Secretary or the Under-Secretary will explain what procedure they envisage. It is a serious thing to pass a Clause which is going to allow the spinning of a coin or cutting through a pack of cards, or something of that sort, by which a Member shall be decided. The election of a Member to Parliament is a solemn procedure, and I cannot help feeling that a tight decision ought not to be dealt with in that way.
I hope that the right hon. Gentleman will be able to help us also on the question of the election petition. I may have misunderstood the Clause, but I want to be quite clear. Is it really suggested that when a disputed contest comes before a court of law, the judge of the court is to settle the matter by lot? I really cannot contemplate such a position. The function of a court of law is to determine as between the parties that appear before the court; to determine where lies the right as between the two contestants or litigants. A most undignified position will be created if, when two contesting parties in an election are brought before the court, the only function of the judge is to say, after spinning a coin, which of the two it has been decided shall come to Parliament. I cannot believe that that is the position, but I would like to know just how far the matter really goes. Perhaps the right hon. Gentleman will let us know what is to be the function of the court under the Measure as it now stands.

§ Lieut.-Commander Gurney Braithwaite (Holderness)
I think there is very little doubt what the Government have in mind in drafting this Clause. I take it that they are anxious to relieve the returning officer—who often is the mayor, the town clerk or somebody of that kind—from being placed in the difficult and invidious position of having to cast a vote when the candidates have an equal number of votes. I doubt very much, however, whether this Clause is an improvement on that situation. I know, of course, that it caters for changes which are extremely unlikely to happen with electorates of 50,000 or more people, but, as one or two Members have pointed out, we have come very near to that of late. One hon. Member pointed out the case of a majority of only four votes; I 1644 think that in one case the majority was as low as two in the last General Election.
This brings me to the point I wish to make. When we are discussing unlikely possibilities we must envisage the possibility of a dead-heat between three candidates; such an event is not impossible, and there might also be the case of four candidates with equal numbers. I would like to reinforce the request that we should be told exactly what procedure is to be followed. We read in Holy Scripture of the casting of lots. I have never been quite clear how it was done then, although I imagine it was not done by cutting through the pack. There must, however, have been some method of doing it. It is most undignified to envisage an hon. Member sitting in this House for four or five years because a coin has come down heads instead of tails; or because the dice has fallen in a certain manner; or because, in going through the pack, the King has been drawn instead of the Queen. How difficult it would be for an hon. Member in that situation to get up in Parliament and claim that his constituents had sent him here to do this, that and the other. His constituents would not have sent him at all—it would be the Ace of Spades or something of that kind which had sent him. Such a procedure would be beneath the dignity of Parliament.
Paragraph (b) of Subsection (2) deals with the election petition. My hon. and learned Friend the Member for Brighton (Mr. Marlowe) when he put this point just now, suggested a procedure which I confess had not entered my mind. Am I right in thinking that what the Government have in mind is that, after the result of an election petition, certain votes will be ruled as invalid and, in consequence, change the result? After all, an election petition generally takes place when a candidate is aggrieved because his opponent has got in by ten or twelve votes and he feels there has been some improper procedure which has deprived him of his seat. The matter goes for a hearing, and the petition is heard. As the result of the petition, the votes are ruled out. That is how I read the, matter, and I would like to know if I was right or not.

§ Mr. Ede
The casting of lots in elections is not unknown. The Act of Union with Ireland laid it down that if at any election 1645 of an Irish representative Peer there was a tie, the tie was to be resolved by the casting of lots. That Act was passed in 1801. In local government, the casting of lots for the determination of results is not unknown. In fact, it may be described as a fairly frequent practice. I will give the Committee an example which fell within my own experience.
In 1927, I was the Charter Mayor of Epsom and Ewell. I had to conduct the whole of the municipal elections because, as the Charter was new, there were no aldermen. It was prescribed in the Charter that if there was no contest in any ward, or if in any ward there was an equality of votes, the seniority of the councillors concerned was to be determined by the casting of lots. In each ward, three members were to be elected. The one at the top of the poll was to be in office for three years, the one in the middle for two years and the one at the bottom of three successful candidates for one year. Curiously enough, in one ward there was equality of votes between the second and the third of the successful candidates. In two or three of the wards—I cannot quite remember but in at least two—there was no contest.
The names of the people whose voting results were equal were written upon strips of paper. The strips of paper were placed in a closed box and were shaken up. I then drew out one slip of paper, in the case where there was equality of votes between the second and third candidate. The man whose name was on the slip of paper was declared to have been elected for two years. The man whose name still remained in the box was there for one year. Where three names were concerned, the name first drawn out was elected for three years, and the second for two years. The man whose name was not drawn out was elected for one year. I did, in fact, draw his name out, to give him the satisfaction of having had a run for his money. That is the procedure. Anyone who has been a member of an urban or rural council will know that the practice is not uncommon in local government.

§ Lieut.-Commander Braithwaite
In the case cited by the right hon. Gentleman the representation of the wards was not affected. The proposal in the Clause determines the verdict of the electors.

§ Mr. Ede
The curious thing is that there may be equality of votes at an election between the last two candidates. Let us suppose there are three seats, and candidates numbers 3 and 4 receive the same number of votes. It has fallen to the returning officer to determine the result. I ought to read what the Carr Committee said on this point. They said: Should there be equality of voting, the returning officer for a Parliamentary election, if a registered elector for the constituency, may give his casting vote. There is at the moment no provision as to what happens if the returning officer is not an elector for the constituency. The Committee went on: At a local government election in England he can do so, whether or not he is an elector. In these days it is invidious to put upon a returning officer the obligation of saying, as between one man and another, whether one or the other should be elected. The hon. Member for Galloway (Mr. McKie) asked me to consider the returning officer. At one time the hon. Member suggested that the officer should decide in favour of the member who last sat, and then in favour of the representative of the party who last sat. Let me take the hon. Member's own case. Suppose, at the last election there had been a tie in his constituency between himself and somebody else. The hon. Member was in the last Parliament, and, therefore, was the sitting Member, but he was not the nominee, I understand, of the party that he represented in the last Parliament. It is clear that if we attempt to adopt any form of—

Mr. McKie
The right hon. Gentleman singled me out in order to provide himself with an illustration. I am quite clear about what I intended to say. The returning officer has complete discretion how he may use his casting vote, but there is a long-established custom which lays down that he should give his casting vote either to the sitting Member or to a representative of the party which last held the seat. One candidate may have both those qualifications.

§ Mr. Ede
The report published on 27th July did not appear to indicate that. In Parliamentary elections there has been no tie since 1918. I recollect, as a student of old poll books, that there was one tie between 1805 and 1918; but it is a contingency for which we must provide. I think it is better, in order to preserve the 1647 attitude of complete impartiality on the part of the returning officer, that he should not have to contemplate at any time what he will do in the event of there being a tie. It is far better to take the matter out of his hands. No one has ever impugned the action in local government to which I have alluded. I do not know whether a tie ever arose between two Irish Peers and that lots had to be drawn. At any rate, it shows that the matter has been thought of in previous years.
I am asked also what is to happen in the event of a petition. I gathered from what the hon. Member for Galloway said that any issue which went to the courts would be decided by lots. That is not the case. What will happen is this. There is a petition. The votes have been scrutinised. The court comes to the end of considering all the votes that have been put in jeopardy, and an equality of votes has been recorded. The court is supposed to exercise complete impartiality as between parties. It would be putting too much of a strain upon a court to suggest that they should then have to make what would be a party decision. At this stage there can be no question of corruption or of improper conduct. If there had been, it would have invalidated the election and we should not be in the position of having to consider a tie.

§ Mr. Marlowe
What has been the position when a tie resulted from a petition?

§ Mr. Ede
So far as I know no case has arisen. I do not think that in living memory a tie has resulted from an election petition. I would not like to say from memory what might have happened before.

§ Mr. Marlowe
Can the right hon. Gentleman say what should happen in such a case?

§ Mr. Ede
I will try to find out between now and the next stage of the Bill. It is highly undesirable that the courts should be involved in reaching what is almost inevitably a party decision in these matters. I therefore suggest that there is nothing undignified in casting lots; that it has been tried in local government; that it has been enacted in the Act of Union with Ireland; and finally, in the words of the Carr Committee: we prefer a decision by lot in such cases both at Parliamentary and at local government elections. 1648 They say much more that I have not quoted, but this quotation will complete the whole of the quotation from the paragraph: This places"— that is, the giving of a casting vote— an invidious responsibility upon the returning officer. He is not obliged to discharge it, but if he does not, the election is void. Presumably, in the case of a Parliamentary election where the returning officer was not a Parliamentary elector in the Constituency, the election would be void. That is the kind of thing which most people would desire not to see occur. I suggest to the Committee that the proposed procedure is perfectly reasonable and that it has been carried out without any violent criticism.

§ Mr. Boyd-Carpenter (Kingston-upon-Thames)
Would the right hon. Gentleman give consideration to one small point relating to Subsection (2)? I share his view that it would be putting a most onerous obligation upon the election court to give them a casting vote. If an equality of voting resulted, it seems an equally undignified task to put upon two judges of the High Court that they should cast lots. Imagination boggles at the prospect of one learned judge tossing up a coin and the other learned judge calling "heads." If we pass this provision I believe—I speak subject to correction—that this will be the first time that the obligation of casting lots has ever been placed upon the High Court. I would ask the right hon. Gentleman to consider between now and the Report stage the possibility of providing that where the decision of the Court on matters concerning an election results in an equality of votes it should be remitted to the returning officer and that if lots have to be cast they should be cast by that officer. It seems more consistent with the dignity of all concerned that that duty should fall upon him.

§ Mr. E. P. Smith (Ashford)
Since the Clause contemplates the court deciding the matter by lot, may I ask whether the right hon. Gentleman has consulted His Majesty's judges in the matter? They may have objections.

§ Mr. Pickthorn (Cambridge University)
My prejudices are rather in favour of lots. Everybody talks about how democratic he 1649 is; if we want to be democratic the right way is that everybody should be elected by lot, and have done with it. If there is an equality of voting, I am surprised that it has not occurred to the Home Secretary before that the really right thing is that the election should be declared void. The right hon. Gentleman seemed to regard that as a reductio ad absurdum, but there is a good deal to be said for the view which I have put forward. If the election is so near, it ought to be run again. My imagination does not boggle like that of my hon. Friend the Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) at judges having to toss and not knowing how to do it. It would be perfectly proper for you, Mr. Deputy-Speaker, to do it now, once and for all. I see no reason why we should not invite the Chair to draw lots to say whether in such a case as we are discussing the person whose name comes first upon the ballot paper, or last upon the ballot paper, should not always be deemed to have one vote more than were actually cast for him. Therefore, Major Milner, you would be tossing once for all now. Whatever indignity or vice there might be would rest upon the collective shoulders of Parliament. The judges would have no difficulty in future. They would simply know that wherever there was a tie they must always give the extra vote either to the man whose name came first or to the man whose name came last, as the case might be.

§ Mr. Ede
I will consider the suggestion made by the hon. Member for Kingston-upon-Thames (Mr. Boyd-Carpenter). Since I spoke last I have heard that in the event of there being an equality of votes on a petition, at present the election is declared void and a fresh election has to be held. I am bound to say that I do not share the view of the hon. Member for Cambridge University (Mr. Pickthorn) that a second election should be held. I think that in such circumstances it is generally desirable that a result should be achieved on the election that has already been held, and I think this Clause provides for that. I have not consulted the judges as to whether they would be willing to participate in this, but I have no doubt that if Parliament imposes a duty upon them they will carry it omit.