§ 12.42 p.m.
§ Baroness Farrington of Ribbleton
rose to move, That the draft regulations laid before the House on 13th March be approved [11th Report from the Joint Committee].
The noble Baroness said: My Lords, the draft regulations make detailed provision for holding referendums under Part II of the Local Government Act 2000. They set out the necessary requirements to ensure that local referendums are well conducted and put in place the technical provisions required to ensure that they run smoothly. The regulations follow as closely as possible existing provision for the conduct of elections and referendums set out in other legislation and take account wherever possible of new developments in the electoral process. I should also like to place on record that I am satisfied that these regulations comply with the Human Rights Act 1998.
Councils are required to hold a referendum on proposals for executive arrangements in three main circumstances, the first of which is, when, following consultation, the authority draws up proposals for a form of constitution for which a referendum is required; in other words, a proposal that includes a form of elected mayor. Secondly, where a council receives a valid petition for a form of constitution that includes an elected mayor. Thirdly, when a council is 563 required to hold a referendum by a direction given by the Secretary of State for any of the forms of executive provided for in or under the 2000 Act.
These regulations will, subject to parliamentary approval, form an integral part of the Government's modernisation agenda for local Government and will allow councils to continue to progress their implementations of new constitutions. I commend the regulations to the House.
Moved, That the draft regulations laid before the House on 13th March be approved [11th Report from the Joint Committee].—(Baroness Farrington of Ribbleton.)
§ Baroness Hamwee
My Lords, in another place these 120 or so pages of regulations were debated at such length that our colleagues ran out of time and the Minister did not have the opportunity to reply to points raised in the debate.
I have a number of questions which I am sure the Minister will have anticipated. Has the new electoral commission, or, at any rate, its shadow form, been consulted? The shadow chair of that commission has raised questions as regards the possible date of the general election. Certainly there is one solid proposal on the table. We hope that the regulations setting the process in train will prove to be robust and will work.
The wording on the ballot paper set out in Schedule 1 is crucial. Given the prescribed wording, I wonder how anyone could vote against a proposal for an elected mayor as no alternative arrangement is offered. In other words, the fallback option is not printed. My next question is not rhetorical. Why is there not a choice on the referendum ballot paper between the elected mayor proposal and the fallback arrangements as the existing arrangements will not be an option? How can electors understand what they are voting on when the fallback proposals cannot be promoted within 28 days of the referendum, as provided for by Regulation 5, or at any rate cannot be promoted by the local authority itself?
It seems to us that the main source of information on the fallback proposals will come from those who are campaigning on both sides of the elected mayor argument. The effectiveness of their campaigning will in large part depend on the cash available to the two sides. That is not a healthy situation. Over the past two or three years I have heard a number of criticisms not of the noble Baroness's department but rather of the Home Office with regard to the inadequacy of the information that it has published, particularly on the London referendum and the GLA elections. I hope that one might be able to learn from that.
The noble Baroness may be sympathetic—although she may not feel able to express this—to my question as to what help the Government are giving to ensure that the title of mayor does not give rise to confusion as between the elected mayor and the traditional mayor. In the past the noble Baroness has expressed concern on that point.
564 I turn to the question of expenses limits on referendums. Will the Minister explain the position as regards election expenses, particularly for local council candidates who are standing for elections taking place at the same time as the referendum and who want to express in their literature their view for or against the referendum position? As the noble Baroness will know, that is particularly important in Berwick-upon-Tweed which is the first authority to have received a petition for an elected mayor. Will council candidates who express a view, and perhaps explain their position on a mayoral ballot, be expected to apportion some of their own election expenses to the mayoral election expense limits? Is that simply part and parcel of standing for the local election and does it not count towards the mayoral election expense limits, or is that not the case?
I turn to campaign organisers. More than one is allowed. There is an expenses limit of £2,000 plus five pence per elector for each campaign organiser. The obvious question arises: can one side of the argument appoint more than one election organiser, thus upping the expenses limit? How will that work?
Regulation 13 concerns counting observers. Will the Minister confirm that it will be possible to appoint counting observers to represent those who oppose the proposition in the referendum question?
Finally—this point was not raised in another place—I refer to the hours of polling, from 8 a.m. to 9 p.m. I expect the Government will express the view that the hours of polling for a referendum should be the same as for a local election. However, I believe that people are too often disenfranchised by the inability to get to a polling station within the prescribed hours and direct their minds too late to the need to apply for a postal vote even though those are now more widely available. I cannot let today pass without stating that polling hours for local matters should be as long as for general elections. I acknowledge that the authority may decide that the whole referendum should be conducted on a postal basis.
I apologise to noble Lords for taking a relatively long time. However, I believe that it is better to take time in this House to ask questions and receive answers than to go over past issues, as occurred in another place. I look forward to hearing the Minister's response.
§ Lord Greaves
My Lords, my noble friend put forward a number of points that I had wished to raise. I shall not pursue them further, apart from one.
I wish to make three points. First, it seems extraordinary that a document of 96 pages is being given only this fairly rudimentary scrutiny. The document contains a number of complex points which must be got right. As my noble friend said, if the system goes wrong there are many ramifications.
The size of the statutory instrument makes the position difficult. The layout and design makes it difficult to get to grips with its exact meaning and how the system will operate. The large number of schedules set out in the form of amendments, additions, or new 565 applications to existing statutory instruments also make the situation difficult. In a previous professional capacity I used to be able almost to recite the principal areas rules without looking at them—we have all had sad experiences in our lives! So I thought that I knew my way around them. But I found it extremely difficult to work out exactly what the schedule means. I took the schedule to bed with me one night to study. I fell asleep long before I had achieved to my satisfaction my understanding of it.
Will the Minister confirm that once the statutory instrument is approved, the amended rules and regulations for running elections and referendums at different levels will be reprinted in a form which those involved in political campaigning, elections and council work can understand—although perhaps not the man in the street? If not, the position will be very difficult.
Secondly, there is provision for all-postal vote referendums. On their own, that is not a particularly dangerous practice. However, it is another extension of substantial postal voting in this country. As people in Northern Ireland know only too well—in Northern Ireland postal votes are not allowed—substantial postal voting can, unless there are careful safeguards, lead to very substantial electoral fraud and corruption. There seems to be a mood in the country, and a desire by the Government shared to some extent across all the political parties, that there should be substantial increases in postal voting and that this is a way of increasing participation in elections. I do not believe that people have considered the new safeguards which may be required. The obvious one—it has been resisted so far—is the provision after the election of a marked register of who has used his postal vote, as applies to those who vote at a polling station.
There are two fundamental principles underlying the system of secret ballot elections in this country: that it is secret; and that the identity of the person voting is checked to ensure that the vote is cast by the person who is supposed to cast it, the elector. Widespread postal voting potentially undermines both those fundamental principles. Although it is not a particular issue with regard to referendums—I cannot imagine that a lot of people will engage in a great deal of electoral fraud over this kind of referendum—the extension of postal voting in this country leaves the system open to a substantial increase in electoral fraud unless measures are taken. I hope that the Government will seriously consider the matter.
Thirdly, I refer to election expenses. I do not know whether I have missed a trick. In the district where I live the new referendum expense limits would come to about £5,500. Let us imagine a situation in which the council is controlled by one party which decides that it will go for an elected mayor. The other local political parties, of which there may be two or more, may decide individually to campaign against that. In addition, I might decide to campaign against that choice and set up a campaign, "Lord Greaves against a mayor". I cannot imagine what the acronym might be. My wife might decide to set up a separate campaign, "Lady Greaves against a mayor", and so on. What guarantees are there 566 that those expense limits on referendum campaigns mean anything at all? Everyone in the borough could set up their own campaign and the expense limits would become completely meaningless.
In particular, what is to stop a local election candidate setting up his own campaign against a mayor and suddenly having election expense limits in his own ward of £5,500? I am not clear about the safeguards. Perhaps the Minister will enlighten me.
§ Baroness Farrington of Ribbleton
My Lords, I shall try to answer all the questions posed. I understand the circumstance referred to by the noble Baroness, Lady Hamwee, about there being inadequate time at the end of the detailed debate in another place to allow these questions to be placed on the record.
With regard to the Government giving help to ensure that confusion over the title of mayor is minimised, our guidance is clear. Where a council which currently has a ceremonial mayor adopts a constitution with an elected mayor, the title of mayor will fall to the elected mayor and not to the chair of the council. The council will be able to decide which of these two people, the chairman or the elected mayor, takes formal legal precedence. The council will be able to choose which of them, or both, undertakes ceremonial duties. If such a council has en elected mayor, the chairman will have no statutory title so could be called anything other than mayor. None of this affects town mayors or lord mayors. Town mayors are unaffected because town councils cannot have a directly elected mayor. Lord mayors are unaffected because the title is easily distinguishable from that of mayor.
The noble Baroness raised the complex issue of whether fallback proposals should be included as part of the option. Including the issue of fallback would over-complicate the referendum question. More importantly, the referendum is to ask people whether they want a directly elected mayor, not whether they want to vote for the fallback. Regulation 5(2) does not prevent councils publicising their fallback proposals. In fact, Regulation 4(1)(b) requires them to do so.
The noble Baroness and the noble Lord, Lord Greaves, also referred to expenses. Ultimately, it will be for the courts to decide on the circumstances of any particular case. Our intention in the regulations is that only activities that are directly attributable to a campaign seeking a particular outcome to the referendum would count towards the referendum campaign expenditure limits. If a candidate expresses a view on a referendum question in literature that he or she has produced for the purpose of seeking to persuade people to vote for him or her in the election, the costs of production should count only towardsthe candidate's election expenses limits. On the other hand, if a candidate were to produce literature that explicitly sought to persuade people to vote for him or her in the election and to vote in a particular way in a referendum—a point that the noble Lord, Lord Greaves raised—the costs would have to be apportioned appropriately between the election expenses limit and the referendum expenses limit.
567 The department will produce technical and specialist guidance for the local authority returning officers in a document known as a Keeling schedule. It will show in full the relevant legislation, as altered, applied and modified by the schedules to these regulations, together with covering explanatory guidance. In response to the noble Lord, Lord Greaves, we shall do everything that we can, in addition to being clear and accurate, to make the guidance as comprehensible as possible.
The noble Baroness also referred to consultation with the Electoral Commission. We shall consider carefully its recommendations on polling hours. Once the Electoral Commission assumes its functions in respect of referendums under the Local Government Act 2000, we shall consult it on the regulations. That is in line with commitments that we have given to your Lordships and others. We shall also consult the commission on any amendments that we need to make to the regulations, such as those to specify further questions if a council with an elected mayor draws up proposals to change its form of executive. The commission assumes those functions on 1st July this year. We understand that it is fully aware of our intention to consult it on those issues.
The noble Baroness also raised an issue to do with expenses. It is correct that the regulations impose no limit on the number of individuals or bodies who can incur referendum expenses in a campaign, provided they are not spending money on each other's behalf. If each group is spending its own money, each will be able to spend up to the referendum expenses limit on its campaign. That mirrors the decision for referendum expenses in the Political Parties, Elections and Referendums Act 2000, which the Liberal Democrats supported. There is no limit on the number of organisations that can campaign in a national, sub-national or regional referendum.
However, it is not possible for one organisation or individual to get round its expenses limit by giving money to other individuals or bodies to spend in the campaign. If they did so, the money so spent would count against their own expenses limit. The draft regulations specifically state that referendum expenses are those incurred by or on behalf of any individual or body. Again, that mirrors the position for referendums covered by the Political Parties, Elections and Referendums Act 2000. If, on studying the details of that reply, the noble Baroness or the noble Lord, Lord Greaves, wishes to write for further clarification, I am sure that the department will be delighted to help.
The noble Baroness also asked about counting observers. The counting officer for the referendum can allow anyone whom he or she thinks fit to attend and observe the count, whether they are in favour or against. We expect counting officers to choose carefully whom they allow to attend the count, ensuring that there is a fair balance between those who oppose the proposition and those who support it.
The noble Lord, Lord Greaves, asked about postal voting. There was no evidence from last year's pilots of any increase in electoral fraud. We shall keep a close eye on how all postal voting progresses. The Government 568 deplore electoral fraud and will not tolerate it. We shall want to consider further the noble Lord's suggestion about the publication of the names of those who have voted.
§ Baroness Hamwee
My Lords, I thank the Minister for the offer of further clarification on expenses limits in correspondence. I am not satisfied that it would be impossible for a number of campaigners to co-ordinate while carrying on separate campaigns. My noble friend Lord Greaves might campaign in week one, his wife in week two—
§ Baroness Hamwee
My noble friend Lady Thomas could do week three and I would do week four. That covers it. We might want to take that issue further.
The Minister also mentioned the proposed Keeling schedule. I hope that the detail can be made available to organisers and candidates in accessible form. As my noble friend Lord Greaves has pointed out, the issue is complicated. I do not think that I even got as far as he did in reading through the schedules. I also hope that the Government will consult the Local Government Association on the details of the schedule and any accompanying detailed guidance.
§ Baroness Farrington of Ribbleton
My Lords, we shall undertake to make the detail as accessible as possible, in both senses—as comprehensible and as widely available as possible.
The noble Lord, Lord Greaves, asked about the way in which individuals could take part and talked about people forming a group together. I spent 20 years as a member of Lancashire County Council, where the noble Lord was also a member. From that experience, I think that it would be almost impossible for anyone to construct legislation that the noble Lord would not find some way of using to his advantage, while remaining strictly within the law. I shall give further consideration to his point. I remember being involved in a by-election in the Ribble Valley. During the course of the campaign, a lot of people came who had never been there before. They realised how beautiful the place was and that helped with the tourism industry there. If the noble Lord is inviting lots of people up to test the law, I know that they will want to return time and again to Pendle.
On Question, Motion agreed to.