HC Deb 10 December 1968 vol 775 cc231-42
Mr. Richard Sharples (Sutton and Cheam)

I beg to move Amendment No. 19, in page 9, line 28, leave out 'ob servers' and insert 'scrutineers'.

The Chairman (Mr. Sydney Irving)

With this Amendment it would be convenient to discuss Amendments Nos. 21, page 10, line 1, leave out 'observer' and insert 'scrutineer'.

  • No. 22, in line 5, leave out 'observer' and insert 'scrutineer'.
  • No. 23, in line 10, leave out 'observers' and insert 'scrutineers'.
standing in the names of the right hon. and learned Member for St. Marylebone (Mr. Hogg), of the hon. Member for Sutton and Cheam (Mr. Sharples) and of other hon. and right hon. Members.

Mr. Sharples

Subsection (4) of the Clause states: The term 'counting agent' shall be discontinued, and the agents appointed by a candidate to attend at the counting of the votes at a Parliamentary or local government elec- tion shall be known as the candidate's observers at the count. The Amendment is not of great substance or importance, but, in our view, the term "observer" does not give a clear indication of the duties of those who attend a count on behalf of a candidate. It is probably fair to say that everyone thinks of an observer as being an interested spectator. Indeed, this is one of the definitions in the Oxford Dictionary.

We propose to substitute the word "scrutineer" because we believe that it gives a clearer indication of the duties which are clearly laid down in Schedule 2 of the Representation of the People Act, 1949. I need not rehearse those, since every right hon. and hon. Member knows what happens at a count. In the circumstances, I ask the Government to consider this Amendment carefully.

Mr. C. Pannell

I hope that the Gov ernment will accept the Amendment. The word "scrutineer" has a more positive ring about it. It indicates that some rights rest with candidates and that their repre sentatives are not just passive observers, but are agents. This Amendment would give status to the word "scrutineer".

The Association of Municipal Corporations wants the word "observer", but I am all for playing up the electing element and keeping functionaries in their place. I want to create rights for candidates. At the end of the day, an election is about a person who will occupy a position and that idea should run throughout the election. I have seen observers or scrutineers, whatever they might be called, barely tolerated.

Leeds, as the hon. Member for Leeds, North-West (Sir D. Kabery) will agree, has far more civilised arrangements, but I have been to many counts throughout the country and have seen town clerks and others tending to think that political parties have no rights at all almost until the declaration. Anything which tends to emphasise what an election is and gives point rather than complacency to it is something we should stand up for.

Mr. John Smith (Cities of London and Westminster)

The right hon. Member for Leeds, West (Mr. C. Pannell) has spoken of rights. I suport the Amendment, but speak of duties.

Mr. C. Pannell

The same thing.

Mr. Smith

Not at all. I once wrote to a dim public body, asking a question. I received the reply:

"Dear Sir,

The Commissioners of the River Stour have rights, but no duties.

Yours faithfully."

There is indeed an important difference between rights and duties. My experience of counting agents has been that, by the time they get to the count they realise that their work is near an end and it is difficult to get them to do the job properly. If we call them "observers", which conjures up the idea of a passive rô le and not of positive activity, it will be even more difficult.

I therefore support the proposal to change the term to "scrutineer", which is both more positive and has an active connotation.

Mr. James Allason (Hemel Hempstead)

The right hon. Member for Leeds, West, (Mr. C. Pannell) has stated that the Association of Municipal Corporations is against the Amendment. It would be fair to say that his view is that officials should be kept in their place. On the whole, however, we should equally be prepared to listen to the advice of officials.

This is valuable advice, coming from the Association of Municipal Corporations, which represents those who have to perform this arduous business of counting. If the term is "scrutineer", there is a strong danger that the person fulfilling that duty will believe that they have the right to interfere, perhaps even a duty, whereas if they are observers, they observe. If there is some dispute whether a vote has been properly counted it is not the duty of the scrutineer or observer to interfere. He should draw the attention of the official present to what he considers to be an irregularity, but he cannot interfere. The grave danger is that if the observer thinks that he has become a scrutineer he will believe that he has the duty to come forward and interfere.

Mr. C. Pannell

Speaking as a rather more senior vice-president of the A.M.C., may I point out that the word has been used during all the years that I have been concerned with politics, without any difficulty at all? We are changing it here today.

Mr. Allason

Yes, and because this is a time of change is it not right that we should listen to the advice of the experts? I am sorry that, as a senior vice-president, the right hon. Gentleman will not join with me in accepting the advice of those who are more expert than he or I.

Sir D. Glover

I do not like to oppose my hon. Friend the Member for Hemel Hempstead (Mr. Allason), but I agree with the other speeches that have been made on the subject. Speaking as a "medium" vice-president, of the A.M.C., in between the right hon. Member for Leeds, West (Mr. C. Pannell), and my hon. Friend, but having a good deal of knowledge of these things, as I have fought eight elections, I believe that it is an important alteration to change the word "scrutineer" to "observer". People on both sides who go into the count will consider that they have been reduced to a lower status; indeed, I think that this is the intention of the municipal authorities.

If the word is changed it will lead over the years to a lot more recounts, because instead of the observer watching a person counting and saying," By the way, there is a mistake for Glover in that lot", what will happen now is that the scrutineer will feel inhibited from saying this. Instead, he will go away after the count has finished and say, "There are a lot of mistakes on my table".

Now the scrutineer considers that he has a fairly positive rô le to play in the details of the count. If he is reduced to the level of observer, and is not allowed to open his mouth, but can only watch what is going on, he will go to the election agent and say that there were a lot of mistakes at his table and will suggest a recount. Normally, a lot of mistakes are corrected by the scrutineer watching carefully from the other side of the table, seeing that a mistake is put right as it goes along. The Government would be very wise to reinsert "scrutineer" and take away the word "observer". I hope that the Minister will agree that the weight of the argument is for no alteration or change, and will, therefore, accept this Amendment.

4.45 p.m.

Mr. Keith Speed (Meriden)

I endorse what my hon. Friend the Member for Ormskirk (Sir D. Glover) and the right hon. Member for Leeds, West (Mr. C. Pannell) have said. Over the past few years I have noticed a tendency to regard candidates in political parties, during the count, as being the least important people there. Everything gives way to television or radio, or the officials concerned, who do a very good job. We have to remember, however, what the whole thing is about. It is not a spectacle, or a particular function at which the local authorities can show how efficient they are, and they are certainly efficient. The counting agents, as they are at the moment, scrutineers as I hope they will be, have a right and duty at all stages during the count to draw to the atten tion of the person concerned at the individual table the errors and mistakes that inevitably occur.

I have been to a number of counts, my own, and those of other Members of Parliament. Mistakes always occur at every table. This is not unusual when one is talking in terms of 40,000 or 60,000 votes. We have to give a positive function to these people. "Observers" is far too passive. Millions of "observers" watch elections on tele vision. For those taking part in the count, members of political parties and representatives of the candidate, there is a job for them and it is up to Parliament to make that clear.

The Under-Secretary of State for the Home Department (Mr. Merlyn Rees)

I speak as a non-president of any sort. In pursuing the argument against these Amendments I am sure that my right hon. Friend the Member for Leeds, West (Mr. C. Pannell) sees very clearly that there is an important rô le for the candidates and their supporters at elections. If there is any feeling that this is not generally recognised already, this Amendment would not necessarily help matters. If there is this strong feeling that at some counts due regard is not given to those who have worked hard for the previous three weeks, it might be that this can be corrected at some other point in the Bill.

The four Amendments to Clause 11 obviously go together. Let me make it clear what they seek to do. They seek to substitute "scrutineer" for the word "observer" in the phrase "candidate's observer" which the Bill, in turn, seeks to substitute for the term "counting agent" wherever it occurs in the 1949 Act. The term "counting agent" is used in the 1949 Act to describe the sub ordinate agent of a candidate, whose job is to watch the returning officer's staff counting the votes and to object to a vote given for an opposing candidate which he thinks is bad. Whatever change in nomenclature is made there is no desire, indeed it would be very foolish, to change that. It is a most important job done by representatives of the candidates.

However, the term is liable to be con fused with "counting assistant", which is commonly used to describe a clerk employed by the returning officer to count the votes. For that reason the Electoral Advisory Conference advised a change. Because the Government have not accepted all recommendations it would be foolish of me to say any more than that this should be taken into account. A great deal of thought has been given to this. The term "counting assistant" is not statutory, and it could be argued that it might be best to leave the statutory term "counting agent", but to change the term "counting assistant", as it is merely a matter of common usage.

The fact that the term "counting assistant" is not statutory is the snag. Simply because it is not enshrined anywhere, in so many words, it will be very difficult to break the habit of usage. If, on the other hand, the statutory term "counting agent" is replaced by another statutory term such as "candidate's observer" there is a chance that the new phrase, with its status in law will, as time goes by, replace the present phrase. There is some force in that argument, but I do not pre tend that it is an extremely powerful one.

I would deploy the argument further in terms of the words used and the Oxford Dictionary, and so on. The term "ob server" is used in paragraph 7 (1) of Schedule 8 of the Licensing Act 1964, in relation to a person who watches the counting of votes at licensing polls about Sunday opening in Wales, where the term "counting agent" would not in any case be appropriate because there are no can didates. There was no provision in the 1961 Bill for observers to watch the count, and an amendment was tabled in Committee to provide that scrutineers be allowed to watch the counting of votes. The then Conservative Government accepted the principle of the Amendment, which was withdrawn to allow a Government Amendment to be tabled on Report. The Government Amendment used the term "observers" instead of "scrutineers." What appeared in the Licensing Act, 1964 was taken as a guide, albeit in a slightly different circumstance.

The problem about the word "scrutiny" is that it has a technical meaning at elections. This is the aspect which I would press most. Archaically, a "scrutiny" was the election itself. But now a "scrutiny" has come to mean an examination of the ballot papers at a stage later than the count—that is, after they have been counted and sealed up by the returning officet—if and when a court order is made for them to be opened for the purpose of deciding whether any votes were cast by a person not enttled to vote or were wrongly counted as good and should be struck off, or wrongly given as bad and should be added.

A scrutiny following a Parliamentary election has not taken place for many years. But it is understood that a scrutiny is occasionally ordered by a court in connection with legal proceedings following a local government election. The scrutiny takes place in the presence of counsel and of counters for the candidate. In the Government's view, the term "scrutineer" had therefore better not be used for persons taking part in the ordinary counting of votes, otherwise confusion may arise.

This is not just prissiness on the part of the Home Office, as my right hon. Friend the Member for Leeds, West so delicately remarked. But there is a very good point in law that the term "scrutiny" has a meaning all its own in electoral law. It is used in connection with the proceedings after the count and not, as the Amendment would have it, during the count. For this major reason, I cannot advise the Committee to accept the Amendment. There is a very good legal reason for not accepting them.

Let me suppose that the objection is that the word "observer" means a person who passively watches the votes being counted and does not import the right to speak up about a ballot paper. I looked up the New Oxford Dictionary and I found that an "observer" is one who not only watches, marks or takes notice, but also one who makes a verbal observation or remark. Incidentally, the New Oxford Dictionary gives as one meaning of "scrutiny" an official examination of the votes passed at an election in order to eliminate any votes that are invalid and to rectify or confirm the number stated in the return". I am sympathetic to the views of hon. Members, who are among a band of 630, all of whom know a great deal about elections, but already in electoral law the term "scrutiny" has a meaning all its own. For that reason, I must advise the Committee to reject the Amendment.

Mr. Hogg

I am a little disappointed with the reply of the Under-Secretary of State. I do not wish the Committee to divide on what is basically a question of semantics, because Divisions take time. However, I wonder whether the hon. Gentleman would, before Report, consider the comment which I propose to make. I was impressed by what the right hon. Member for Leeds, West (Mr. C. Pannell) said in stating the case for the Amendment. The only point in the hon. Gentleman's reply to which serious attention should be given concerns the word "scrutiny" having a technical meaning in electoral law which is inconsistent with the proposed nomenclature in the Amendment.

That is an argument which can cut both ways. If we are to use this opportunity to get our nomenclature right, there is no reason why, at a later stage, the Government should not substitute another word for that technical meaning such as "examination", or some other word which, on reflection, they might consider to be more suitable. Apart from this purely technical point, I should have vastly preferred the word "scrutineer" to "observer".

I will not ask my hon. Friends to vote on this Amendment; it would be absurd to do so. However, I ask the Government not to take advantage of this abstinence on our part, but to promise to look at the matter again by Report.

Mr. C. Pannell

I, too, am interested in the meaning of words. Neither the workers of my hon. Friend the Under-Secretary of State in South Leeds, nor my workers in West Leeds, would appreciate the force of his argument. "Observer" seems to be a passive word. If the Government had left in the phrase "counting agent", which is hallowed by nearly 50 years of electioneering on my part, I should have known what it was. But hon. Members, and particularly my hon. Friend, must be vigilant about the assumption that all our local people are seized of the fine shades of emphasis which we use here.

I have received the briefs of the Association of Municipal Corporations, and I like to go along with the Association when I can. But I must consider these matters with the greatest suspicion. Democratic forms always fall down when we are not sensitive about them. I can imagine town clerks saying," They have altered the law. You are given less significance ".d Observer ", in the fine language of my hon. Friend, means someone less thrusting than a scrutineer or counting agent.

I am sure that my hon. Friend the Under-Secretary of State will look at this matter again, but I hope that he will not take it that, since we are not to divide on the Amendment, we accept the idea. I am sure that as a reasonable man he will note the strong feelings which have been expressed and will convey them to his reasonable boss.

Mr. Rees

I will certainly do that. The problem is the meaning in electoral law of "scrutineer" or "scrutiny". I will look at the matter again because my inclination, and I am sure that of my right hon. Friend the Home Secretary, is to meet the wishes of the Committee. What moves me most is not the legal argument, but the point expressed on both sides of the Committee that what we intend is often watered down by the time that it is read in an Act.

I am worried about the implications of changing the word "scrutiny" because of its long historical use in electoral law. I will consider the matter in the spirit which the right hon. and learned Member for St. Marylebone (Mr. Hogg) and my right hon. Friend for Leeds, West (Mr. C. Pannell) have put it to me.

Mr. Sharples

In view of the very reasonable assurance of the hon. Gentleman to consider the matter again before Report, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Mr. Sharples

I beg to move Amend ment 20, in page 9, line 40, at the end to insert 'at any one time'.

Subsection (5,b) refers to the appointment of polling agents at polling stations and limits the number of polling agents able to attend at polling stations to one. Our view is that, as the subsection is drafted, if a candidate wished to keep a polling station covered throughout the period allowed after polling, the person appointed as the polling agent would have to do an uninterrupted spell of 14 or 15 hours outside the polling station.

The duties of the polling agent are clearly laid down in the Second Schedule of the Representation of the People Act, 1949: Each candidate may before the commencement of the poll appoint a polling agent to attend the polling station for the purpose of detecting personation. This is an important rô le which should not be under-estimated. It is impossible for anyone to carry out that rô le through out the whole day without relief, and I hope, in the light of what I have said, that the hon. Gentleman will accept the Amendment.

Mr. Rees

I think that the Amendment is extremely reasonable. As the hon. Gentleman has stated, the job of a polling agent involves him being in the polling booth all day. Polling agents are used in different ways in different parts of the country, but, nevertheless, in law their function is to work in this way, and in the spirit of helping volunteer workers who do such an excellent job for all parties I will look at this matter. I am advised that consequential Amendments would be required in other parts of the Bill, and I will look at that as well.

The Deputy Chairman (Mr. Harry Gourlay)

The Question is, That the Amendment be made.

Mr. Hogg

On a point of order. I had understood the hon. Gentleman to accept the Amendment, Mr. Gourlay.

Mr. Rees

I think that I am in error here. The simplest thing would be for the Committee to leave it with me because of the ramifications. I will see that it is put right on Report.

Mr. Sharples

In view of the assurance of the Under-Secretary of State, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Question proposed, That the Clause stand part of the Bill.

Mr. Speed

I rise to make a small point on this Clause which I hope the Minister will be able to meet, and which is concerned with agents and the offices of agents in both Parliamentary and local elections.

Subsection (3) is concerned with the office of an election agent for a local government election. I appreciate that the Clause goes further than the 1949 Act where, in Section 57 (2), the office for a local government election agent was much more narrowly drawn than the Clause proposes. Nevertheless, the Clause does not meet the problem that all too often local government boundaries alter, sometimes substantially, before Parliamentary boundaries alter.

I can illustrate this point by giving an example from my own constituency. I know that hard cases make bad law, and this illustrates the point I have in mind. My constituency includes part of the Borough of Tamworth, which is in Staffordshire. Part of my constituency of Meriden is in Warwickshire. If Conservative or Labour councillors are contesting the Borough of Tamworth they would normally wish to have the services of my own or the Labour Party's agents. The neighbouring local authority to Tamworth is the Atherstone Rural District Council, in whose area lives the Labour Party agent and in which her office is situated. Under this Clause she will be unable to act as the election agent and use her office for Labour candidates standing within her constituency for the Borough of Tamworth.

My agent and her office are situated within the Meriden rural district. Similarly, under the Clause, she will be unable to act as election agent and un able to use her office as an office for an election agent for those candidates stand ing for the Borough of Tamworth.

I am sure that this difficulty is encountered in other areas. I suspect that many of our agents have, during the past few years, been breaking the law in this matter. This should not be investigated too far. It is a small, but important point. The Home Office has come part of the way to improving the 1949 Act, and I hope that the Minister will give an assurance that by a slight Amendment to the Clause he will meet this point, so that Parliamentary election agents will be able to be local authority election agents provided they are within the same Parliamentary constituency.

Mr. R. H. Turton (Thirsk and Malton)

Will the Minister say why urban districts are referred to and not urban and rural districts? In many cases the office will be in an adjoining road, but not in the same urban district.

Mr. Rees

On the last point, frankly I do not know; I will find out. I will look at this matter in the context of being helpful to the hon. Member for Meriden (Mr. Speed). As he correctly points out, the purpose of the change in the Clause was to be helpful. It has not gone far enough to be helpful in the case to which he refers and which, I am sure, arises in other parts of the country.

Given the feeling of the Committee, my right hon. Friend and I will look at the matter, and I undertake on Report to bring back a Clause to cover the point; in other words, we will improve what is already an improvement.

Question put and agreed to.

Clause ordered to stand part of the Bill.

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