REFERENDUM ORDER

HC Deb 13 May 1975 vol 892 cc406-20

11.0 p.m.

The Minister of State, Privy Council Office (Mr. Gerry Fowler)

I beg to move That the Referendum Order 1975, a draft of which was laid before this House on 8th May, be approved. This order applies the statutory machinery for holding the referendum on 5th June. It is made under Section 1 of the Act which received Royal Assent last week. In addition to substantive provisions, it applies all the necessary parts of the Representation of the People Act, Parliamentary Election Rules and the Representation of the People Regulations, modified where necessary in accordance with the principles set out in the debates we have had on the Referendum Act. The wording of this order has been made available since 7th April, when the White Paper on the order was published.

Since then there have been two important changes which have had to be taken into account. This draft contains provision for special arrangements for voting in the Forces and a new provision for arrangements for counting votes by counties, and in Scotland by regions. Otherwise, this is substantially the same as the earlier version, on the basis of which returning officers have been making preparations.

I shall not trouble the House with a recital of the fuller contents of the order which are essentially technical, but I hope I shall be able to answer questions on technical points at the end of the debate. I hope that the House will be prepared to approve the order and thus complete the statutory provision for the referendum.

11.2 p.m.

Sir Michael Havers (Wimbledon)

This debate is, I suppose, the last sad act of the Referendum Act. It is not my object to commiserate with the Government on the consequences of what followed from the Act but to seek assurances from them, without in any way seeking to make political capital. My questions are on matters which have caused some anxiety and I hope that the Minister will be able to deal with them.

The first is on absent voters and proxies lists. Regulation 30 of the Representation of the People Regulations 1969 says, the registration officer shall, on request and without fee, supply to each candidate or his agent a copy of the absent voter's list and this applies also to those on the postal proxy list. I do not see any provision for that in this order. It is important that those who may be canvassing should be provided with lists of those people so that they can carry out an essential part of their duty. I am not seeking that this order should be changed. It is too late for that. But some provision should be made so that those who have postal or proxy votes may be known to canvassers.

I come to the power of observers under Article 5 of the order which provides for the appointment of persons to observe the verification of the ballot paper accounts and the counting of the votes. It must be made clear that mere passive observers at the count are not enough. They must be observers who are able to take an initiative at the count and not merely to watch. They should be able to say, for example "That ballot paper has a four letter word and 'Down with Benn' instead of a cross". They must have power to take initiatives to deal with circumstances such as that at the counting. That is not in the order, and I hope that some assurances will be given that provision will be made for that.

This fits in with consultation at the count, because the returning officer, in taking a decision on a dubious vote, is under an obligation to consult one of the agents from each interested party represented at the count. It may be that I have missed it, but there appears to be no obligation in the order in this respect, because there will be no candidate or election agent. There should be powers for those present, however they may be appointed, to require the returning officer to consult them before deciding, in what would otherwise be a unilateral way upon dubious votes.

The observers will be chosen in a way that I do not understand, particularly in areas where there is no umbrella organisation. It may be that the returning officer himself will appoint the observers from the two umbrella organisations, but there may be circumstances in which one or other is not taking an active part in a particular constituency. Is the returning officer himself to be responsible for appointing the observers? What will happen in those areas where neither umbrella organisation is campaigning? I imagine that Keep Britain in Europe or, in its absence, the Conservative Party associations, will blanket the country, but on occasion there may not be an observer to be appointed from the other side. It is right that everybody should be represented among the observers, and I should like to know how the returning officer will deal with that problem.

11.6 p.m.

Mr. David Steel (Roxburgh, Selkirk and Peebles)

I certainly reject the idea that, in the absence of a Keep Britain in Europe local association, the Conservative Party association would do. That is an extraordinary piece of arroganc, of which I hope that we shall hear no more during the referendum.

On the point raised by the hon. and learned Member for Wimbledon (Sir M. Havers) about Article 5, I have been asked locally who will appoint the people concerned at local level. Where do MPs fit it? The order does not specify that MPs will automatically be entitled to verify in the polling stations and at the count, although we understand that that is the Government's intention. Curiously enough, MPs are allowed for in the detailed schedule dealing with declarations of secrecy. That should have been written into the order, but perhaps the Government will be able to say something about that. I hope that they will also say something about the appointment of those concerned.

It is very odd, but I suppose part of the oddity of a referendum, but the provision on page 5, relating to modifications to Section 82 of the Representation of the People Act— Right to use certain schools and halls for meetings at parliamentary elections". —appears to provide that any member of the public who wishes to secure a "Yes" or "No" vote, which must include virtually everybody in the country, is entitled to use a school or hall. I find it difficult to believe that that is the intention. Is this nonsense completely unavoidable? If so, we must hope and pray that the public at large do not realise it.

11.9 p.m.

Mr. John Roper (Farnworth)

We are on uncharted ground, and those involved in the campaign will find it difficult to be sure of a number of matters. When will the Minister announce the arrangements for the appointment of people to act as observers? Will the same people have to be appointed as observers at district level for the verification of votes as at county level for the counting of votes?

People may well be available in the evening to be present for the verification of votes, but not on the following day for the counting. Therefore, if it is thought appropriate, I hope that it will be possible for different persons to be appointed as observers for the verification and for the counting stages. I realise that the detailed provisions are not in the order, but my right hon. Friend the Secretary of State is given powers to make these arrangements, and we should like an indication of what is in his mind.

In Article 7 there is a reference to the regulations which the Secretary of State will be empowered to make with respect to voting by members of the forces. When are the regulations likely to be made and to be laid before the House?

Reference has already been made by the hon. and learned Member for Wimbledon (Sir M. Havers) to the supply of the lists of proxy and absent voters. Will my hon. Friend the Minister say something about the supply of registers to the two sides in the campaign? As far as I can see, no explicit provision is made in the order to amend the normal provisions for parliamentary elections.

One must ask whether disputed ballot papers should be taken to the level of the chief counting officer to adjudicate upon them with the national agents of the two sides, though it would delay the result. We should like advice on the matter.

Rule 51, on page 13, makes provision for a recount. It says: Before the counting officer makes any public accouncement concerning the numbers required to be certified in accordance with section 2(6) of the Referendum Act 1975 or certifies the numbers so required, he shall consult the Chief Counting Officer who may, without prejudice to any other directions which he may give, direct the counting officer to recount the ballot papers. Does that mean that it is impossible for the counting officer for any county to declare the result for that county until the results from all the counties are known and the need, or otherwise, for a recount becomes established?

11.13 p.m.

Dr. Edmund Marshall (Goole)

Like others who have already spoken, I should be grateful if my hon. Friend the Minister of State would give us more information about the arrangements to be made under Article 5 for the appointment of observers at the count. I note that the wording in Article 5(1) has been changed from the original draft, to include as two separate operations the verification of the ballot paper accounts and the counting of the votes. Does it mean that the two operations will take place in two places, or will all the votes for a particular county or, in Scotland, region be gathered together before the verification stage?

Reference has been made to appointing observers who might be nominated by the umbrella organisations. Even in those parts of the country where the umbrella organisations are fully active, they are still not the complete British people. There are many other people with no connection with the umbrella organisations who are very interested in the outcome of the referendum, and who might also appreciate the opportunity to be present at some of the counts.

The possibility of Members of Parliament being present at counts has been mentioned. Now that counting is to be done at county level in England and Wales and at regional level in Scotland, the members of those local authorities might be considered as suitable people to be appointed as observers.

11.15 p.m.

Mr. Ted Leadbitter (Hartlepool)

I am not sure what Article 5 means since it is exceptionally brief and it omits certain points. For instance, does the appointment of persons to observe verification of the ballot paper include any advisory comments on exclusions of people who would normally feel qualified to observe? That aspect is exceedingly vague. Postal votes are often dealt with at a separate count. Is provision made here for observers at that separate count? It would appear that the intention is that there should be, but it is not clear and I hope the Minister will indicate whether that is the case.

There is nothing in the order to give guidance on who the observers shall be, what their qualifications and standing shall be, whether political parties should be excluded and whether office holders in those parties should be included by virtue of their office.

The remaining articles deal with modifications to the Representation of the People Acts, but according to page 13 of the order the initiative for the declaration of the result appears to be in the hands of the chief counting officer. In this context, is there any guidance about when a recount would be undertaken? Those of us with experience of parliamentary elections know that usually there is a mutual understanding in different areas between the parties about the disparity which should warrant a recount. In this case it would appear that only one man can decide. Is there any guidance on this point, or will the matter rest with one man?

Is the Minister satisfied that the order covers sufficiently the anomalies involved in voting by post and proxy? I am not clear about the question of the Armed Forces, for instance, although I do not want to spend any time on that. I spoke on that subject at some length on the last occasion, and I hope that the Minister will indicate that the points raised then have been taken into account in framing Article 7.

11.19 p.m.

Mr. Ivan Lawrence (Burton)

In General Elections in the normal course of events at many of the counts there are public galleries from which people not connected with the count can watch the proceedings. They have no function, but are there out of interest. In the past returning officers have been able to exercise a certain control and influence over this matter. Will the public be admitted under these rules?

It is not immediately clear that they will, even in the discretion of the verifying officer. Rule 45 on page 11 says, The verifying officer may limit the number of observers present at the proceedings so that the proportion of observers to his assistants is one observer to two assistants. It looks as though the observers mentioned will be observers of the polling procedure for purposes of verification. I am referring to members of the general public who might wish to view the count from the gallery, so as to be near their friends, relations, councillors and so on.

11.20 p.m.

Mr. Gerry Fowler

The hon. and learned Member for Wimbledon (Sir M. Havers) asked me a series of questions about who would have access to the absent voters' list. Advice will be going out that those who have charge of the absent voters' list—the returning officers in normal elections—should give access to that list to anyone who asks bona fide. I refer to a person who approaches the returning officer saying that he represents one of the two campaigning organisations or who, for some other reason connected with the referendum wishes to see the absent voters' list.

The appointment of observers will be in the hands of returning and counting officers. The advice is likely to be that they should accept observers nominated by the local branches of the two umbrella organisations. However, they have very wide powers. They may appoint whomsoever they wish to be observers at the count.

Perhaps I should deal with several other questions simultaneously. In a sense I have already answered them. It is entirely up to the local returning and counting officers as to whom they accept and how many people they accept. They will have to take account of local conditions. It would be pointless to say that there should be general access for the public, albeit in a gallery, in a hall of a restricted size. On the other hand, if there is plenty of room I hope that, since this is part of our democratic machinery, returning and counting officers will not be too restrictive. But they, and they alone, can judge the local circumstances.

Mr. Leadbitter

This is a matter of vital importance. The House will regret it if we do not spend time on this.

Past experience has shown that many returning officers do not take local circumstances into account in the manner mentioned by the Minister. On many occasions political parties have had to press, according to their interpretation of local circumstances, their requirements for the count and for polling station provision. I wonder whether the Minister will be precise. When he says that local circumstances should be taken into consideration, does he mean that local opinion—the views of important sections of the community in which the count is taking place will be taken into account? How can local circumstances be taken into account other than by the interpretation of an individual?

Mr. Fowler

I should be surprised if the returning officer in Hartlepool did not take into account the opinion of my hon. Friend if he stressed it with that vigour. I am sure that it would be a valiant returning officer who resisted that pressure. I hope that returning and counting officers will take local views into account. However, I stress, as we did so often in the debates on the referendum, that we hope that we shall stick in the referendum as closely as possible to the well-tried and well-used procedures with which we are familiar in General Elections. If returning officers are familiar with those procedures I am sure that they will exercise their discretion to ensure that there is the maximum democratic participation.

Mr. Lawrence

There is a confusion in my mind, which is not resolved by the document, as to what is meant by "observers". In an election the local government officials who count the ballot papers are watched by persons whom I understand the order refers to as "observers". That is why Rule 45(3) says that the proportion of observers to assistants is one observer to two assistants. The observer is the person who stands by the table and watches the two assistants sorting the ballot papers. That takes no account of the general observer, not necessarily on the floor watching the counting of votes but in the public gallery. The Minister says that the rules are plain, but no distinction appears to be made between those two kinds of "observed".

Mr. Fowler

I was coming to the hon. Gentleman's point which he has now made twice. When he referred to Rule 45(3) in his original intervention he quoted it accurately and used the words "may restrict". That is the key.

I come back to what I said about local circumstances. If there is no gallery and no room, the returning or counting officer may restrict the number of observers to the point which is specified in the order. The word "observers" in the order includes what those of us who are familiar with electoral practice call counting agents, and observers in the public gallery. Where there is a public gallery and where there is space, there is no reason why a returning or counting officer should not admit members of the general public, subject to the normal checks which are applied by the order.

I was asked by the hon. and learned Member for Wimbledon who appoints observers. By the terms of the order the returning or counting officer appoints observers. I hope that he will take account of nominations from the two umbrella organisations. The hon. and learned Gentleman also asked what happens if there is no umbrella organisation. The answer has to be that because he has wide powers the returning or accounting officer will be able to appoint whomsoever he thinks fit in the absence of nominations. I hope that returning and counting officers will see fit, where there is no local branch of an umbrella organisation, to nominate those whom they think represent the particular viewpoint within that area.

That is the best I can do here. It is like asking what happens in a General Election to the interests of a certain party when that party is not contesting a seat. The answer is that that party is not represented at the count. We can only rely—as I am sure we can—on the good sense of returning and counting officers.

The hon. and learned Gentleman wanted to know whom the counting officer consults with regard to possibly spoilt papers. We hope that where there are local branches of the umbrella organisations and those organisations are represented at the count, they will be able informally to appoint a leader who will act in the way in which an agent normally acts in a General Election. Many hon. Members who have agents will be familiar with the procedure. Others who do not will be familiar with the procedure whereby they may themselves have to look at the spoilt paper or decide at the last moment with the returning officer whether a paper is spoilt.

I freely confess that this is not an ideal arrangement. It cannot be an ideal arrangement, simply because there are no candidates in a referendum. We hope that returning and counting officers will seek to encourage local organisations to nominate for the count a leader who may play the part played by an agent in a General Election.

Sir M. Havers

It is clear from what the Minister says that there is a degree of informality which is probably inescapable in an operation of this kind. As the conduct of the poll may be influenced by the report of this debate, may I seek the hon. Gentleman's assistance also in making clear to returning officers that observers—those on the floor, not those in the gallery, because they are two different classes—should be able to draw the returning officer's attention to any thing they see which they consider to be of importance—for example, a vote which is going into the wrong pile or something like that?

Mr. Fowler

I can give the hon. and learned Gentleman that assurance. No restriction will be placed upon observers who are acting as counting agents, if so I might call them, beyond what would be placed upon them at a normal election count.

Since the hon. and learned Gentleman has said that much of the guidance will come from tonight's debate, let me assure him that Sir Philip Allen—we are delighted that he has accepted the task of acting as chief counting officer in the referendum; we are grateful indeed to him that after carrying the burden of Permanent Secretary in the Home Office for many years he has agreed to do this—will be issuing guidance to counting officers throughout the country. I hope that what I say tonight, where I am talking not about the precise contents of the order but about the guidance which may be issued under it, will not be taken as the last word, because I am sure that Sir Philip Allen will wish to qualify and certainly to spell out in greater detail some of the things I have been saying.

If I may now turn—

Mr. Leadbitter

Before my hon. Friend leaves what he is now saying—

Mr. Fowler

Before my hon. Friend, who has already spoken and intervened, intervenes again, perhaps before leaving the question of observers I may deal with the question asked by my hon. Friend the Member for Farnworth (Mr. Roper): whether the same people must necessarily be observers at the count and at the verification of the ballot. The answer is "No". In many places they will be the same, in others they will not. That is entirely up to local circumstances and, again, to the decision of the local returning and counting officers.

Mr. Leadbitter

I want only to be helpful. While a degree of discretion is laid upon the chief counting officer, would it not be a good idea that, since before the count starts the observers will be known, they should nominate from themselves representatives to carry out the normal functions which take place at an election of dealing with questions of spoilt papers, postal votes and the rest?

Mr. Fowler

That was exactly what I was saying a moment ago. We very much hope that where there are efficient local branches of the umbrella organisations which are represented at the count, they will nominate a representative from among themselves to perform exactly those tasks.

I have been asked one or two other questions about the verification and the count. My hon. Friend the Member for Goole (Dr. Marshall) asked whether the verification and the count would be at the same place. The answer is "No". In general, in England at least, the verification will take place within the districts. The ballot boxes—not necessarily the same ballot boxes, because the ballots, having been verified, may be put into a smaller number of boxes—will then be transferred to the place where the count will take place at county level.

My hon. Friend asked whether anybody could go to the count, including councillors, and the hon. Member for Roxburgh, Selkirk and Peebles (Mr. Steel), asked about the position of Members. Members will be able to go both to the verification and to the count. No special provision is made for councillors, but again it is entirely up to the local returning officer and the local counting officer whether they should admit councillors—whether county or district, or regional or district in the case of Scotland—to the count. Again, the returning officer's view will no doubt be formed by local circumstances.

I was asked whether disputed ballot papers should all go to the chief counting officer. The answer has to be "No". If that were to happen, I fear that the referendum would last for weeks after 5th June. That is a prospect that one could not readily contemplate. The chief counting officer will be holding conferences with counting officers throughout the realm and he will be issuing advice. Most of the counting officers will have years of experience of judging what is and what is not a spoiled paper from local and general elections. We have every faith in their judgment.

Finally, I turn to the question of a recount. It was suggested that it might not be possible for a local counting officer to declare his county result, regional result, GLC result or result in Northern Ireland before a recount has either been called or not been called, as the case might be, and that it could not occur until the national result was in. The counting officer will be able to declare the local result but it will, in a sense, be a provisional result. If it were then necessary that there should be a national recount, it might well be that there would prove to be some local variation in the result as originally declared. We hope, however, that results locally will come through on the Friday and on the Saturday after the referendum so that by early or mid-evening of the Saturday after 5th June we should have the final national result. I think that we all keep our fingers crossed and hope that there will be no recount.

Sir M. Havers

I am slightly anxious about that distinguished civil servant Sir Philip Allen going off on his own, in a sense. The Minister has said that he will not be bound by our discussion tonight. However, the House has to approve the order, and I hope very much that when Sir Philip considers the rules that he will send out to the various returning officers he will bear in mind the views expressed by the House tonight. Some of those views have been raised almost repetitively by a number of hon. Members. I hope that Sir Philip will not suddenly make some change as a result of the Minister saying that he will not be bound by what is said tonight.

Mr. Fowler

I can assure the House that Sir Philip will be bound hand and foot by the provisions of the order once the House has approved it. I am sure that he will take full account of everything that is said in this debate. Some points, as the hon. and learned Gentleman has said, have not only been made but made and made again. I am sure that they will not escape Sir Philip's notice. I commend the order to the House.

Mr. J. Enoch Powell (Down, South)

I understood the Minister to say a short while ago that he expected that some of the local results would be announced before it was known whether there would be a recount. I may have misheard him, but that was what I thought he said. If so, I find that difficult to reconcile with revised Rule 51 at the foot of page 13, which appears to say: Before the counting officer makes any public announcement"— that is, concerning the result— he shall consult the Chief Counting Officer who may … direct the counting officer to recount. The natural meaning of those words is that there will be no local announcements until in each case the chief counting officer has cleared the result, as it were, on the question of a recount.

Mr. Fowler

May I, with the leave of the House, reply to the question? I am almost timid about saying it of the right hon. Gentleman, but I think that the right hon. Gentleman has misunderstood the provision. He is confusing the possibility of a local recount with the possibility of a national recount. What is suggested in the provision to which he draws attention is that the local counting officer shall clear the local result with the chief counting officer. Of course, as I have repeatedly said to the House when we have been debating the referendum, the local result is of no significance although some will attribute a significance to it. It may be because some wish to attribute significance to it that there will be a call for a local recount irrespective of and long before there is any national result. At that point the local counting officer may wish to consult the chief counting officer, and there may be a local recount. However, that has little to do with the horrendous possibility that there may have to be a national recount which, irrespective of whether there had been a local recount, would entail a recount in every area of the country.

Mr. David Steel

Earlier the Minister said that Members of Parliament would be admitted to the counts. However, the order does not so state. Is this to be the Minister's instruction to Sir Philip Allen and downwards to the returning officer?

Secondly, the hon. Gentleman did not deal with my question about the use of schools and halls.

Mr. Fowler

If the hon. Gentleman rereads the order, he will find a Rule 45B:

1. "(1) The counting officer shall make arrangements for the counting of the votes.
2. (2) No person, other than the counting officer and his assistants, the Members of Parliament for constituencies wholly or partly within the area … observers and other persons permitted by the counting officer may be present at the count."

The order, therefore, makes provision for Members of Parliament to be present at the count.

The hon. Gentleman was perfectly correct about school halls. We hope that there will not be frivolous bookings of school halls and the like. We come back to the point that I have already made. Candidates are not involved. Therefore, it is exceedingly difficult to put one's finger on a person, or that person's agent, as we do at General Elections, who shall be solely entitled to and responsible for certain functions.

Mr. Roper

Before my hon. Friend sits down, I wonder whether he would reply to the questions that I asked. First, when will the regulations under paragraph 7 dealing with the Armed Forces be made? Secondly, will he tell us about the supply of registers to those involved in the referendum campaign?

Mr. Fowler

We have already said in debates on the Bill, now the Act, that it would be far too costly to supply registers on demand free of charge. The normal provisions will apply. Anyone who wishes to purchase a register will be able to do so. Members of Parliament are entitled to registers at a reduced rate. I assume that most hon. Members are committed one way or the other. Therefore, I doubt whether there will be any acute difficulty about the supply of registers.

I assure the House that the order fulfils in toto the undertakings that were given in the debates on the Act regarding voting by members of the Forces. I think that there is little further to be said about that. The order, together with the provisions of the Act, provides that all members of the Armed Forces, save those who are under the water for three weeks at a time, or whatever it may be, may vote in the referendum. It also provides that existing proxies for members of the Armed Forces shall be cancelled so as to eliminate the possibility of dual voting.

Question put and agreed to.

Resolved, That the Referendum Order 1975, a draft of which was laid before this House on 8th May, be approved.

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