HL Deb 22 April 1999 vol 599 cc1293-303

7.13 p.m.

Lord Williams of Mostyn rose to move, That the draft regulations laid before the House on 24th March be approved [14th Report from the Joint Committee].

My Lords, the European Parliamentary Elections Act received Royal Assent on 14th January this year. It provides for future elections to the European Parliament in Britain to be conducted using a regional list voting system. The draft regulations are to govern how the election on 10th June will be conducted.

The key text in British electoral law is of course the Representation of the People Act 1983, which itself has a couple of hundred sections and several schedules including one containing what are known as the election rules.

The regulations and rules governing all other elections, including of course the European Parliamentary Elections, are based on the adaptation and application of the 1983 Act. So, although the European Parliamentary Elections Act sets out the broad framework for how the elections will be run, this secondary legislation provides the subsidiary detail. The Government have consulted widely and we are grateful to all those who took the time to comment.

I will touch on some highlights. I begin with nominations. In each region every registered political party will he able to put forward a list containing up to as many names as there are seats to be filled in that region. Independent candidates will, of course, be able to stand. Nominations will have to be accompanied by a signature from each candidate indicating that they consent to the nomination. The nomination will have to be accompanied by a deposit of £5,000, the same for party lists, however many names they contain, as well as individuals. The closing date for nominations is 13th May.

As regards expenditure limits, for an individual candidate or a party contesting a single region the maximum that can be spent on the campaign will be £45,000, multiplied by the number of seats in the region. So, for example, in the north east, which has four seats, the maximum would be £180,000. A party contesting every region will be subject to a limit of £3.78 million, the total of all 11 regional limits. 'The party's expenditure limit is to cover all of its election expenditure. There will no longer be the distinction between constituency expenditure and national campaigning. By virtue of the report of the Committee on Standards in Public Life, chaired by the noble and learned Lord, Lord Neill of Bladen, all expenditure has to be accounted for and be subject to the limit. This national limit of £3.78 million is in line with the Committee's recommendations. Parties contesting more than one region are free to spend their money where they choose. The Neill Committee has welcomed these general regulations governing party expenditure.

As regards counting arrangements, as in previous elections counting cannot begin until the polls close in the last EU member state on the evening of Sunday 13th June. Counting will be conducted at Westminster parliamentary constituency level, although the regulations allow an acting returning officer responsible for more than one Westminster constituency to combine them for counting purposes.

On recounts, the first point I make is that the regions which are being used for these elections are vast. There is no possibility of being able to count all the votes cast in one region in a single location. We have given a good deal of thought to that. It simply is not practical to transport the votes to one place from all over Scotland. We are therefore going to have a number of local counts across these regions in consequence of these regulations if they are approved. All the parties, and individual independent candidates of course, will have the right to be represented at all of the local counts. They will have the right to ask for a recount if they are unhappy with the way the count has been conducted.

Once each local count has been completed to everyone's satisfaction the returning officer will transmit the result to the regional returning officer who will in turn give him or her clearance to declare it locally. When all the local results have been passed to the regional returning officer he will perform a seat allocation calculation. The political parties and independent candidates will be allowed to be present at the regional centre where the seat allocation calculation is to be performed. They will be able to ask the regional returning officer to repeat the calculation if they suspect an arithmetical error. The regional result, therefore, is nothing more or less than the amalgamation of all the local results.

Your Lordships have already approved similar procedures in respect of the Scottish and Welsh elections and I am aware that my ministerial colleagues have undertaken that in the event of any real difficulty arising from those arrangements the provisions will be looked at again. I am happy to give a similar undertaking in respect of these elections and these arrangements. We have made repeated assurances, which I am happy again to confirm, that we will carry out a review of the operation of the new system following the election on 10th June and that this area is perhaps one that the review may need to cover.

The design of the ballot paper is based on the results of extensive research which the University of London Constitution Unit and Social and Community Planning Research undertook. The design has been well received and attracted little comment during the consultation process.

I turn to vacancies. This was discussed when we discussed the Bill itself. Where an MEP dies or resigns and thereby brings about a vacancy, if he was originally elected on a party list the vacancy will normally be filled by the next available person on that list. However, that person will need to produce a certificate from the party nominating officer indicating that the party is still content to be represented by that person. This is to guard against the possibility that a candidate on the list may have changed parties between the original election and the time of the vacancy. As I explained to your Lordships in Committee last June, it would be wrong if the next candidate on the list had left that party for another, or formed his or her own party, but was still automatically entitled to fill the vacancy. It was our intention to include in these regulations a provision which would enable the regional returning officer to reject such a candidate in favour of the next willing—I almost said certifiable, but I mean eligible—candidate further down the party list. That is what we have done.

Where an MEP dies or resigns and was originally elected as an independent, or where a party list is exhausted, a by-election will be held. Those arrangements are identical to those which the House approved for the Scottish and Welsh elections.

I appreciate that I have highlighted only one or two matters. These regulations will enable the next and future elections to the European Parliament to be conducted using the proportional regional list system, which Parliament approved—eventually—in the shape of the European Parliamentary Elections Act 1999. I therefore commend them to the House.

Moved, That the draft regulations laid before the House on 24th March be approved [14th Report from the Joint Committee].—(Lord Williams of Mostyn.)

Lord Mackay of Ardbrecknish

My Lords, I am grateful to the Minister for his explanation. Obviously, he could touch on only one or two issues in this long piece of secondary legislation. I wish to make two general points first.

This legislation underlines the problem that we in the legislature have of being unable to make any amendment to any provision in a piece of secondary legislation. I have no problem with the great bulk of this legislation, but I am concerned about one or two aspects. My dilemma, and that of my colleagues in the other place, is that we either accept it all or reject it all. I believe that as parliamentarians we must think long and hard about a better way of dealing with secondary legislation, especially when noble Lords see the size of this document.

My second point is that which I made on the equivalent Welsh and Scottish orders. Clearly, most of the legislation represents a complex series of changes to the Representation of the People Act in order to allow for lists. Lists are alien not only to that Act but to the British political tradition. I will leave that aside as we have already had that debate. However, I hope that the Government will consider the suggestion.

I appreciate that the answer may be that between the passage of the original Bill and these elections they had no time to bring forward primary legislation. However, I believe that they should consider bringing forward a Representation of the People Bill which deals with the list system, so that in future we need not go backwards and forwards from that Act to these regulations in order to work out all the changes which have had to be made to a first-past-the-post electoral system to bring it into line with a list system.

I hope that the Minister will take that on board. I speak only for myself—I have consulted no one—but while I do not like this system I believe that it should be properly regulated. The only way to do so is to have a self-standing Act so that we are not confronted with the bitty changes we see here.

My substantive points are in ascending order. I was surprised to see that the ballot paper, which appears on page 44, has been presented horizontally and not vertically. I am delighted to see the names—the Minister always made it clear that they would appear. I had some trouble with the Minister in respect of the Welsh Bill, but I was happy that he saw the force of the argument and that the change was made in subsequent Bills.

In Scotland—I am not sure about Wales—in two weeks' time I shall be looking at a ballot paper on which the list is delineated vertically; in other words, the parties are listed one below the other. Therefore, I was surprised to see a horizontal list. I do not think that there will be confusion, although a few eyebrows may be raised in Scotland and Wales when they find that they have yet another variation of ballot papers within a few weeks. England will not have the problem on 6th May, so people will not realise that there is a vertical potential. I am intrigued that the Government decided to make the ballot paper vertical for the European elections.

As regards the deposit, I shall make two different arguments, but there is a way to bring them together. I understand that £5,000 and merely the signature of the registered party's nominating officer is enough. No longer will people have to go out and compile a list of assenters of electors who are prepared to sign the nomination papers. Five thousand pounds is a hefty sum for a genuine independent or small political party which wants to stand for genuine bona fide reasons. I am assuming that it will lose its deposit. That is unfair. It would he better to have a lower money threshold and insist that a list of signatures is obtained by any party or candidate wanting to stand.

On the other hand, I do not believe that £5,000 will be enough to stop people using the system for self-publicity. In the Scottish parliamentary elections a restaurant—I shall not name it because it would receive even more coverage—has registered itself for £150 as a political party and is to stand. It is £150 to register yourself as—I shall be neutral—The Salad Days Party registered from The Salad Days restaurant and £5,000 to get yourself on the ballot paper. That may sound expensive, but it will appear on the ballot paper which will be seen by every elector in a very wide area. It will also get it on many of the notices surrounding the ballot. And, if it is prepared to pay for a leaflet, it will get a free delivery to every household. That is not a bad bargain. I do not know whether anyone will use it in the European elections, but I understand from the press that someone is using it in the Scottish parliamentary elections. I shall not mention the name of the restaurant because that may encourage people. However, I believe that for future elections the Government must reconsider their decision to have no assenters.

The Minister knows that I do not like the concept of registration. I believed that it is profoundly anti-democratic and he knows that there were some difficulties. I do not know whether there have been difficulties on the European scene; I suppose that we are not near enough to that election. However, the Scottish Green Party, for example, had to become affiliated to the English Green Party in order to be allowed to stand in the Scottish elections and probably the same will be true of Wales. That is not right and we must examine the system again.

The Minister clearly knew what my two substantive points would be and therefore he dealt with them. But, I am afraid, not to my satisfaction. He will not be surprised to hear that. Rule 46 on page 37 deals with recounts. As the Minister rightly said, the same applies in Wales and Scotland on the regional list. The count will be conducted in parliamentary constituencies. When the count has finished the people in the constituency will have the right to demand a recount. The results will go to the regional returning officer who will bring them together from all the constituencies and perform the magic of d'Hondt. As I am going somewhere tonight, and the speed of the Minister's delivery leads me to suspect that he is, too, I shall not bore your Lordships with d'Hondt. You can all be grateful for that, especially noble Lords who have already heard my exposition.

There is a problem which, to be fair, was acknowledged by the noble Lords, Lord McIntosh of Haringey and Lord Sewel, when we dealt with the Welsh and Scottish elections. It is only when someone comes to the last position—perhaps the second to last, too—in the calculation for d'Hondt that he will know whether he ought to have a recount. By that time, the horse has bolted and it is not possible to go back and have a recount. We were told that all one can do is to have an election petition. That is not a very sensible way to deal with the recount proposition.

I did not have the time today to draw together results from the last general election as they may come out in some of the Euro-constituencies. However, I have looked at the results of the last two general elections in Scotland. For example, in Glasgow at the last election. assuming that the second votes were the same as the. first votes, the very last seat was down to the Labour Party by only 730 votes over the next nearest candidate who happened to be from the SNP. Therefore, I have no great regrets in that regard. But 730 votes is not many when one considers the total number of votes.

In central Scotland it was even worse at the last election. When it came to deciding on the last vote position, which fell to the Conservative Party, I am happy to say, it fell to that party by only 137 votes over the Liberal Democrats. I believe that 137 votes is not many votes in an electorate of 400,000. It is just a few bundles. I believe that I can easily persuade your Lordships that recounts at that stage will clearly he felt to be needed to make sure that nothing happened at those original parliamentary counts to move ballot papers about.

That fact could not be known when the counts took place at parliamentary constituency level because in relation to most of the rest of the constituencies looked at in Scotland, for example, there was not much doubt about the last seat. But it was very close in two of them. In the previous election, as regards the Highlands and Islands seat, 466 separated the SNP from the Labour Party. The SNP won that seat. Therefore, the Labour Party may have an interest in trying to ensure that the original counting was right and that there was no confusion.

Over a large number of constituencies—and in this case it would be the whole of Scotland or the whole of the south east of England—not many individual. mistakes need to be made to make up a difference of 173.

Somebody may be quick enough to say that, on that number of counts, the chances are that the mistakes will all balance each other out. It may be possible to prove that to me mathematically but I suspect that a candidate from a party defeated by a handful of votes for the last seat, especially if it were the only seat he would win in that area, may not feel so neutral and balanced about a lack of a recount. Therefore, we must try to find a way to deal with recounts.

I know it will be difficult and I know what may happen. It may be necessary to delay the decision on the last seat in order to have a recount provision. Boxes would have to be reopened and the system gone through again. But the Government are conceding that that may have to happen in any event but only, much later, after an election petition. That is very unsatisfactory.

Lastly, I wish to raise the question of by-elections. I checked the Scotland Bill and I left it thinking that there were no provisions for by-elections. I have read quite carefully Sections 9 and 10 of the Act. It does not seem to me that there is any provision for by-elections. Perhaps I should have looked at the orders to see whether the Government have dealt with them in another way. Are the Government consistent between the three and are the Government sure that they are consistent between the three?

Secondly, is it possible to have by-elections in a proportional representation system. The position is that if a member dies or resigns, his seat goes to the next person on his party's list for the simple reason that the d'Hondt calculator is supposed to decide on proportionality. The seat goes to the next person on the party's list.

The noble Lord and I had many discussions about this and we reached a sort of middle-ground solution as regards what would happen if the next person on the list did not want to be elected. He may have found a job which is even better than being a Member of the European Parliament and no longer wished to be elected. He should then be able to say to the returning officer that he does not want to be elected and it would then be necessary to go to the next person on the list.

However, the other point I raised, which the Minister took on board, was in relation to the situation in which the next person on the list has left the party. He may want to go to the European Parliament—and who would not, given the salaries and conditions?—but he no longer represents the party. The Minister came forward with the provision that the party must certify that the person is still in the party.

I am glad that the Minister underlined that point because one difficulty I had was that while it was clear to me that it would be quite wrong for the person, if he were no longer in the party, to receive the seat, equally, it would be quite wrong for the party to decide that it no longer liked the colour of his tie, his face or that it preferred a candidate lower down the list. I am glad that the Minister put on record that the only reason would be if the person had left the party. That is fine and right and retains the proportionality.

Let us say that the Labour Party gains one seat in the south. I do not know whether or not it will do so. It will probably gain more than one seat, but let us say that it gains only one seat. I grant to your Lordships that it is unlikely but let us assume that the problem occurs in relation to the Labour Party's list. It goes down the list and has no other candidate. That means that there must be a by-election. That by-election is not held on a proportional system at all. It is held on first-past-the-post. Holding an election in those large regions using the first-past-the-post system means, inevitably, that the party which won the first seat on the d'Hondt calculator will win the by-election. It is nothing to do with proportionality. It may be a member of one of the other parties who wins. It may be the party which gained only one seat. The Labour Party will lose the one seat to which it is entitled by proportionality.

It seems to me that there is a huge contradiction by holding elections using the d'Hondt system, which is looking for proportionality, and filling up places of retired or dying members from the party's list because, rightly, that keeps the proportionality. But if there are no more candidates on the party list, rather than leave the seat empty, which at least would be something, a by-election must be held in which that party is unlikely to gain back the seat. Therefore, the proportionality is shot through.

Perhaps I may say as a mathematician that, if we are to have proportionality, for goodness sake let us have some purity about it and let us not write these errors.

Holding the seat vacant is not the best solution but it is the only solution in a proportional system. We canvassed other possible solutions which were shot down by either the Minister or myself. I believe that I shot down one of my own proposals in mid-speech, because this is a difficult matter, but the solution of having by-elections where the party may lose the seat to which it is entitled is not the answer to that problem.

Otherwise, I am content with the regulations and I look forward to hearing the Minister yet again try to defend one or two of those positions.

7.30 p.m.

Lord Dholakia

My Lords, I am grateful to the Minister for his explanation of the regulations. My noble friend Lord McNally would have responded from this side of the House but, unfortunately, he is not well and it falls to me to respond on this matter.

We welcome many aspects of the regulations. We are pleased to see a national limit on party expenditure. That is right and the Neill committee was right to suggest it. We welcome also the change to take account of the Bowman case which allows for third parties—not political parties but individuals or organisations—who wish to show support for a candidate by expenditure which is more than the current nominal £5.

In the other place my right honourable friend Alan Beith expressed his concern about the appearance of the ballot paper. I am not particular bothered about whether it is horizontal or vertical but I am more worried about the arrow on the ballot paper which points straight to the Conservative box. I hope that it will not give that party any added advantage. I am sure that some research would have been carried out on that aspect and I am sure that the risk of confusion is very small.

I have some sympathy with the views expressed by the noble Lord, Lord Mackay of Ardbrecknish. I am afraid I find it difficult to pronounce his title; he probably finds it difficult to pronounce mine. The schedule provides for local recounts, as the noble Lord quite rightly pointed out, but not for recounts for the whole region in the event of a close result. Local returning officers can authorise a recount in the local counting centre, but the overall regional result will not be known at that stage.

The Government say that regional recounts will not take place because all staff would have to wait in the counting centres for the final result in the region to be declared. That would be costly and impractical. In the event of a close regional result the returning officer can recalculate, but cannot order local recounts.

We have no doubt that that will get us into difficulties. Returning officers, obviously, do not like recounts—in many cases, rightly so—as many of those who have fought elections will know. However, in the new circumstances there will be much more pressure for recounts in the light of regional situations. If a party, be it a leading party or a second party, thinks that it might have enough votes to gain one seat, a request for a recount is reasonable.

We need to avoid court actions, such as that at Winchester. I am certainly not complaining about the court's decision in that case. The arguments have been well put both here and in the other place. This problem needs to be addressed and I am sure that we shall have an opportunity, soon after the election, to look at the regulations. We would not wish, in any way, to hinder progress and we shall certainly support the regulations.

7.41 p.m.

Lord Williams of Mostyn

My Lords, I welcome the comments that have been made. Many points to which both noble Lords have referred are dealt with by the assurance that I gave, and I repeat, that we intend to review the running of such elections soon after the 10th June election. I am happy to give that assurance once more.

The noble Lord, Lord Mackay of Ardbrecknish, referred to his dislike of the list. We have held that debate on several other occasions and it is not fundamental to the content of these regulations.

The noble Lord makes the point that there is a case for—I believe I can fairly paraphrase him—a codification of the Representation of the People Act, together with any subsequent and consequential regulations. I think that case should be made. I think your Lordships will know that it would depend on legislative time. If the legislative time of this House is to be unnaturally taken up with debates, which are extremely lengthy, about the reform of this House, it would be difficult indeed for me to please the noble Lord, Lord Mackay of Ardbrecknish, by introducing a codification Bill.

Lord Mackay of Ardbrecknish

My Lords, I thank the Minister for giving way. So, if I were to persuade my colleagues not to bring forward amendments to the House of Lords Bill, so that we complete it quickly, is the Minister suggesting that we may have a representation of the people Bill in the summer to be passed in this Session?

Lord Williams of Mostyn

My Lords, the noble Lord might have such a Bill and I shall wait for the offer. Not only would I carefully consider bringing forward such a Bill, but I would also be inclined to buy the noble Lord a large drink. However, I think my money is safe!

The noble Lord then turned to the ballot. I do not think that anyone seriously criticises the form of the paper. It is fairly plain and is capable of being used quite easily. Whether it should be vertical or horizontal—that is the ballot paper, not the voter—could be the subject of review after 10th June.

On the deposit, we think that the deposit is about right. The old deposit was £1,000, but the regions are significantly larger than the old constituencies. If the "Salad Days" political party—I take it that is not a coded reference to the Conservative Party in its present limbo-land—were to run, £5,000 is not a serious detriment. I do not believe that to find 12, 20, 30 or 40 signatures is a serious detriment either. It is difficult to check the bona fides of signatures on such a basis and we believe that £5,000 is about the right amount. It does not discourage, unnecessarily or unfairly, those who want to stand, but it is capable of discouraging those who are simply frivolous.

The noble Lord raised the question of registration but, as he conceded, that is something both he and I discussed at length during the passage of the Bill. We think it is about right.

The more important questions were the last two to which the noble Lord, Lord Dholakia, also referred. Those are the questions of recounts and by-elections. On recounts, they are available at local level by virtue of the regulations. I am happy to make it plain that it is perfectly reasonable for any party, or any independent candidate, to call for a recount in circumstances where they think it is appropriate, not simply where the result is close. That is the real answer to the problem of recounts. If the local party officials, who are very astute and well trained in these matters, are of the view hat a recount is justified locally, they are entitled to ask for one in the usual way. That being so, the remedy is there for them. It is not appropriate to wait and see whether on a regional basis and on the application of the formula, they may want to have a recount throughout the constituency. Their opportunity is there immediately and they must take it. I repeat that we shall pay careful attention to that in the review.

Lord Mackay of Ardbrecknish

My Lords, I am grateful to the Minister for giving way. Perhaps I can ask for clarification. Given sight of public opinion Polls and the results in an area, I might be able, with the help of a computer, to work out those areas where it is possible that my party may be in close combat with one of the other parties for the last seat and there may be areas where I can discount that for a variety of reasons. There are the first-past-the-posts and you do not get many top-ups.

If I decided in, say, Glasgow, that the last seat would be narrowly fought, would I be justified in instructing all my agents at all the parliamentary counts in Glasgow to demand recounts at that level just to make sure that the votes were correct so that on arriving at the calculation of the last one I would be certain that no mistakes had been made further down the chain?

Lord Williams of Mostyn

My Lords, the noble Lord would be perfectly entitled to remind all party officials, particularly those taking the decision locally, of the power that they have to call for a recount, irrespective of whether or not there is an apparent majority of about 44, as in Winchester, or an apparent majority of 10,000. It is the inaccuracy of the counting that matters. I believe that officials are astute; they know what to look for and I believe that there is plenty of safeguard there on a local basis.

On by-elections, it is important that the UK should maintain a full complement in the European Parliament. We believe that the schemes that we have within this regulation are appropriate. Earlier I said that this was the same as that already approved for Scotland and Wales. I do not have the orders on Scotland and Wales with me, for obvious reasons, but I believe it is a fair point for the noble Lord, Lord Mackay of Ardbrecknish, to have raised. I shall have that researched and shall write to him as soon as I have the details.

Those are the points raised by your Lordships and I hope I have dealt with them. I commend the regulations to the House.

On Question, Motion agreed to.