§ 8.7 p.m.
§ Lord McIntosh of Haringey
rose to move, That the draft order laid before the House on 16th October he approved [39th Report from the Joint Committee].
The noble Lord said: My Lords, the order is made under powers in Sections 12(1) and 113 of the Scotland Act 1998 and deals with the conduct of elections to the Scottish Parliament and the return of MSPs.
Section 12(1) of the Scotland Act 1998 gives power to make provision about elections to the Scottish Parliament to the Secretary of State. Schedule 7 to that Act provides that an order made under Section 12(1) is subject to type C procedure in that a draft of the instrument has to be laid before, and approved by resolution of, both Houses of Parliament.
The order consolidates, with amendments, the Scottish Parliament (Elections etc.) Order 1999 and three amending orders in 2001 but it also contains new provisions. First, it specifies a shorter minimum period for the dissolution of the Scottish Parliament. Secondly, in relation to elections to the Scottish Parliament it provides for access to and the sale and supply of the electoral register. This is similar to what the Representation of the People (Scotland) (Amendment) Regulations 2002 provided for elections to the UK Parliament. Before I describe briefly some of the provisions, I should like to take a few moments to set them in context.
Representation of the people legislation is the main legislative vehicle for electoral legislation in the UK. There was no need to reinvent the wheel when legislating for the Scottish Parliament elections. After all, although a different electoral system is used giving us regional MSPs as well as constituency Members, the main processes and procedures used in other elections are also used for the Scottish Parliament, with additional processes applied taking account of the second ballot paper. That is why, in the main, the changes which have been incorporated in this consolidation order are the same as those which have been applied in Westminster.
The Scottish Parliament (Elections etc.) Order 1999 set out the provisions about the election and the return of Members to the Scottish Parliament. Following the first elections to the Scottish Parliament in 1999. electoral administrators in Scotland indicated their appreciation of having all the material on the conduct of the election provided for in one piece of legislation.
Since 1999, the conduct order has been amended three times. The Scottish Parliament (Elections etc) (Amendment) Order 2001 made changes to reflect 365 those introduced by the Representation of the People Act 2000. The main changes concerned rolling registration, voting by post without the need to put forward a reason for doing so, voting by proxy and the introduction of a device to enable blind or partially sighted voters to vote without assistance.
The Amendment No. 2 Order in 2001 aligned the timetable set out in the rules in Schedule 2 to the 1999 order for a by-election to fill a vacancy in a constituency seat with the timetable for a UK parliamentary election.
The Amendment No. 3 Order in 2001 amended Schedule 1 to the 1999 order. It dealt with the supply of copies of revised versions of the register and notices between the annual revisions of the register, and the period within which applications to be removed from the record of absent voters or to vote by proxy had to be received.
In addition, since 1999 Parliament has established the Electoral Commission and transferred responsibility for some electoral issues to it.
Further amendment of the 1999 order is also required to make provision for the free supply of the full register for electoral purposes to Members of the Scottish Parliament and some candidates at Scottish Parliament elections.
Against the background of those legislative changes and the need for further changes, we took the view that it would be sensible to consolidate the 1999 order and the amending orders of 2001 with the further changes required. It is the draft of this new order which we are now considering.
We have, as required by statute, consulted the Electoral Commission on the contents of the order. I express my gratitude for the input made by the representatives of electoral administrators in Scotland that has resulted in the order which I am confident will provide comprehensive rules and procedures for Scottish parliamentary elections.
This is a substantial order—all consolidation orders are. It has to be in order to contain all necessary provisions for the conduct of elections, and the return of Members, to the Scottish Parliament. An extensive Explanatory Note has therefore been made available which explains the content of the order and highlights those provisions which have changed since 1999. I hope that this has proved helpful.
There are really only two changes in the order which have not already been applied by previous amendments. I shall provide some detail. The first is in Part V of the order dealing with a range of miscellaneous and supplementary matters which are, in general, similar in terms to the 1999 order. The main change is at Article 85, which provides that the minimum period of dissolution of the Scottish Parliament under Section 2 of the Scotland Act is to be a period of 21 days. In the 1999 order, the minimum period was specified as 25 days.
The Secretary of State for Scotland was asked by the First Minister to consider reducing the dissolution period in order to extend the working life of the 366 Parliament prior to the election and to contain the formal campaigning period for elections to the Scottish Parliament to around one month. The Secretary of State consulted with our advisory group. Electoral administrators in Scotland were mainly concerned that any change did not impact adversely on the timetable for the election and thereby increase the burden on administrators during this period.
The Secretary of State also consulted the leaders of the political parties represented at Holyrood as well as the presiding officer and the Electoral Commission. No objections were made to the reduction in the minimum period for dissolution and the Secretary of State therefore decided to make provision for a reduced period within the order. In practice, this means that, for example, in 2003 the dissolution period will begin on 31st March rather than 25th March, with polling day remaining on 1st May.
The second new provision is in Schedule 1 to the order. It makes fresh provision about the free supply of the register of local government electors for electoral purposes relating to the Scottish Parliament. This provides for the supply of the register to MSPs and their election agents, to constituency and individual regional candidates standing for election to the Scottish Parliament, and also to the election agents of registered political parties in respect of list MSP candidates. This provision is similar to that made in respect of MPs and councillors by the Representation of the People (Scotland) (Amendment) Regulations 2002.
In passing, it is worth noting that the supply of the full register to MSPs for the purpose of complying with controls on donations contained in Schedule 7 to the Political Parties Act or Schedule 2A to the Representation of the People Act 1983 is provided for in the Representation of the People (Scotland) (Amendment) Regulations 2002.
The final change I wish to point out is at the appendix of forms. This sets out forms for use at Scottish parliamentary elections. The forms prescribed in the 1999 order for use as returns or declarations of expenditure by registered political parties have not been replicated as they are no longer required. All other forms have been amended to reflect the provisions of this order.
This substantial order is, because of its subject matter and the range of issues it covers, inevitably complex. But it is essentially a consolidation exercise providing afresh for the conduct of elections and the return of members to the Scottish Parliament. I commend the order to the House. I beg to move.
Moved, That the draft order laid before the House on 16th October be approved [39th Report from the Joint Committee].—(Lord McIntosh of Haringey.)
§ Lord Roberts of Conwy
My Lords, I am sure that we are all grateful to the noble Lord for his exposition of this substantial draft order—it is of course a consolidation order—which is particularly welcome in advance of next year's Scottish parliamentary election. I should perhaps explain that I am dealing with the 367 draft order in the absence of my noble friend the Duke of Montrose, who is currently recovering after an operation. I am glad to say that he is recovering well at home. He said he would be very much with us today in spirit when I spoke to him yesterday.
The first point I wish to raise relates to the provisions for the combination of polls. As I understand it, in the 1999 elections, not only was the new two-vote electoral system used in Scotland for the first time but the Scottish parliamentary poll was combined with the local government poll. This combination of polls is due to happen again in May next year. Did the Scotland Office or the Scottish Executive make any analysis of instances of voter confusion arising from the new system and combination of polls? If so, what steps are being taken to prevent a repeat of any such confusion in 2003?
I am told that the practices of local authorities in the organisation of polling stations, ballot box arrangements, counting procedures and so on varied throughout Scotland. What analysis has the Scotland Office or the Scottish Executive made of best practices among local authorities with a view to encouraging less efficient authorities to adopt the more successful procedures?
Finally, on the combination of polls, will the Minister confirm that the polling hours for the local poll will be the same as those for the parliamentary poll. It is the norm for local election polling hours to be from 8 a.m. to 9 p.m. but for parliamentary polls to be from 7 a.m. to 10 p.m. If the polling hours are not coterminous, would it not be impractical and unfair for an elector arriving at a polling place before 8 a.m. or after 9 p.m. to be prohibited from casting a vote in the local poll while he or she could vote in the parliamentary one.
As to Article 40 in Part III, relating to the limitation of candidates' election expenses, candidates and their agents will make much of the planning for and commitment of expenses well in advance of the start of the election campaign. Rolling electoral registers are now in place which can change the total number of electors, and hence the maximum expense limit, on a month to month basis.
Will the Minister state what leeway would be allowed for candidates whose expenses were within the limit allowed by the number of electors in the period immediately preceding the campaign but whose expenses are marginally over the limit as a result of a drop in the number of electors on the rolling register?
I turn to Schedule 2 and in particular to paragraph 25. Will the Minister clarify what the position would be if, after the close of nominations, a candidate who had been included on the regional list of a registered political party defected to another political party? Would that candidate be excluded from the list, or would he or she still be elected if his or her previous party was allocated a sufficient number of regional seats? Would he or she be free to sit as a representative of another party? The eventuality is unlikely, but stranger things have happened.
368 I have a query regarding the recount procedure described in paragraph 56 of Schedule 2. If I understand the drafting correctly, the agent of a registered political party at a constituency count of regional votes may request, within reason, a recount of the regional votes before, but not after, the transmission of the count to the regional returning officer. Paragraph 63 of the schedule allows the agent present at the calculation of the regional totals to request prior to the allocation of seats,the regional returning officer to recalculate or again recalculate the total number of regional votes given for each registered party and each individual candidate in all of the constituencies included in the region".
I find that ambiguous in one respect. Does it mean that agents have the right to request a recount of the regional votes in each constituency; or does it mean that they have the right to request the recalculation of the sum of constituency totals already received? If the latter is the case, will the noble Lord accept that the occasion on which a recount of regional votes is most likely to be required is after the final tally of regional votes from each constituency within the region, as it is on these totals that the number of regional seats allocated to each party will be based? In the event of a handful of votes determining the allocation of the final regional seat, will the Minister make provision for a recount of regional ballots in each constituency at that juncture?
I should be grateful if the noble Lord could explain an aspect of paragraph 71(3) of Schedule 2. If a constituency poll is abandoned because of the death of a candidate, in what ways can the return of regional members for the region in which that constituency is located be completed, given that the calculation for the allocation of regional seats is dependent on the total number of constituency seats won by each party within the region? Again, it is an unlikely scenario; but stranger things have happened.
More generally, will the noble Lord give an assurance that ministerial special advisers in the Scottish Executive and the United Kingdom Government will not engage in activities that could be helpful to a particular political party during the campaign leading up to the election next May?
I hope that the noble Lord can give assurances that announcements and advertising by UK government departments during the Scottish parliamentary election campaign will not be designed or timed to be of advantage or disadvantage to any particular political party in Scotland.
I hope that some care will be taken by United Kingdom television and radio broadcasters when dealing with United Kingdom political issues that could be deemed to be unfairly persuasive in the context of the Scottish parliamentary campaign. I know that this is a difficult area, but we hope that UK broadcasters will aware of the Scottish parliamentary election and that they will endeavour to be as fair and impartial as possible.
§ The Earl of Mar and Kellie
My Lords, I welcome the noble Lord, Lord Roberts of Conwy, to our 369 discussions on Scottish matters. I am particularly pleased to hear about the progress made by the noble Duke, the Duke of Montrose. We look forward to his return to this House.
The scenario proposed by the noble Lord, Lord Roberts of Conwy, for a regional member defecting has in fact happened. Dorothy Grace Elder, who was elected to the Parliament on the SNP list has now left that party to become an independent. Unfortunately, she has not gone the stage further as envisaged by the noble Lord; she has not joined another party.
I thank the Minister for his introduction and explanation of this substantial 156-page order. I must praise the Explanatory Notes provided by the Scotland Office. I hope that it will continue with this new high standard.
The order seems to be a complete document for working reference—except that, I suspect, the Political Parties, Elections and Referendums Act will also be prescribed bedtime reading for candidates and agents.
Consolidation of the several recent orders makes considerable sense and has allowed for some new changes to be made. For example, I note that the declaration of election expenses will not have to be signed before a justice of the peace. Many justices will be relieved about the abolition of this inconsequential duty. Similarly, returning officers will be forwarding copies of returns and declarations to the Electoral Commission—which is a new body; hence this is a new duty.
A proxy vote will be allowed in the new case of absence on an educational course. The youth vote is certainly in considerable need of encouragement and this may help in a small way.
I welcome the measures to extend postal voting—although I acknowledge the concern of my noble friend Lord Greaves about the fraudulent misuse of postal votes. This must be watched out for.
The order also incorporates the Scottish Local Government (Elections) Act 2002, which synchronises the local government elections with the Scottish parliamentary elections, as was mentioned by the noble Lord, Lord Roberts of Conwy. This issue is somewhat controversial. Although some find that it downgrades the status of local government, I see the practical politics of reducing the number of polling days—in Scotland we now have elections every two years and we also have the European elections. Further concerns relate to voter fatigue and political party financial overstretch.
Perhaps the best parts of the order lie in the two sections relating to the free distribution of electoral registers to MSPs and candidates and the reduction of the period of dissolution of the Parliament to 21 days. The second has the merit of meaning that the election need not be called until 31st March. The public will be glad of the shorter election campaign, and MSPs will no doubt be glad of a few more days' salary.
I raise two further concerns. Prompted by my honourable friends Sir Robert Smith and Viscount Thurso, I observe that there is no provision for a 370 recount in the regional election, but that there is provision in the event of a tie. I will try to explain the same problem. A recount is permitted when the regional vote is being counted in the constituency, as set out in paragraph 56. But there is no provision for a re-count when the eight or nine constituency regional votes are amalgamated, as provided in paragraph 63.
I hope that the Minister will agree to investigate the issue. Given that seats in the Parliament and the formation of the Executive could depend on it, it would be disappointing to descend into the realms of the Florida presidential election, chads and all. In Schedule 2, paragraph 53, surely the extraordinary formula used for the number of counting agents belies the fact that one counting agent per table is needed?
I suspect that there will soon be a Scotland Act (Amendment) Bill to deal with changes in constituency boundaries and MSP numbers. On these Benches, we hope that future Scottish parliamentary election orders will be devolved to the Scottish Parliament and that provision for that will be included in such a Bill. That would satisfy our commitment to a proper federal structure for the United Kingdom. Meantime, this order will contribute to a satisfactory Scottish general election next May. Of course, I cannot let pass the opportunity to mention that this will be the second Scottish general election since May 1703.
§ 8.30 p.m.
§ Baroness Carnegy of Lour
My Lords, I shudder to think, having been a polling agent during all the recent elections, including the last Scottish parliamentary election, what would happen if the noble Earl's suggestion were implemented. It is essential to do what the Government have done; that is to say, make as many of the rules as possible for Westminster elections and Scottish Parliament elections the same. It is very confusing for people if the rules differ. We have an enormous number of elections in Scotland, so the least possible burden should be put on people. I therefore hope that the arrangements will remain a reserved matter.
My noble friend on the Front Bench asked about voter confusion. I shall be interested to hear whether the Government have any evidence. It was interesting that people in the area where I was working understood clearly which ballot box to use, and what they were doing. People in Scotland have a sophisticated understanding of elections. The poll tends to be quite high, and people were particularly keen to vote in the last Scots Parliament election. I have no experience of voter confusion, but I should be interested to hear the Government's information.
My noble friend on the Front Bench was right to ask about special advisers. The Scots Parliament is close to everyone, so special advisers work closely with the public and are deeply involved in issues. It is important that their behaviour during the elections is neutral. My noble friend also made an important point about how the United Kingdom political process operates during the Scots Parliament elections. It may be very annoying for people south of the Border to think that 371 they might influence the electoral outcome, but they could do very much, as many media broadcasts take a United Kingdom perspective. That important point had not occurred to me.
The Government have done very well to consolidate all the information. Recent changes have been many and frequent. It is vital to have all the provisions in one order. Do the Government produce a handbook for those conducting elections, or must they use the order? I think in particular of agents, many of whom are not professionals. Many parties cannot afford professional agents. People are conducting this complicated operation following much change. I congratulate the Government on the legislation. They seem to have been asked many questions. I do not know whether they have the answers. If they have, it will he interesting to hear them.
§ Lord Monro of Langholm
My Lords, I am glad to follow my colleagues on this side of the House in complimenting the Government on introducing this consolidation Bill and improving the regulations before the parliamentary elections next May. We should bear in mind that the Boundary Commission dealing with the Scottish Westminster seats is busily engaged in Scotland at present. It is hearing evidence at inquiries relating to the recommendations made some months ago. I hope that when those recommendations are reconsidered, they will be accepted by the Government, as is their duty, and implemented before the next general election in the United Kingdom.
The primary legislation must follow the Boundary Commission recommendation on the number of MSPs. I hope that the Government will stick to the number contained in the Scotland Act 1998, which would mean reducing the number of MSPs from 129 to around 110.
I wish to ask the Minister some questions about the order. Paragraph 40, on page 23, refers to election expenses. It allocates £5,761 plus 61 pence per voter, which totals around £10,000 per candidate. I do not understand why sub-paragraph (3) then confers £100,000 per constituency Member. Will the Minister explain how that figure became so inflated? It should be £10,000 rather than £100,000.
My noble friend Lady Carnegy mentioned polling times. Most people would not object to using a postal vote. I cannot see why voting should continue until 10 o'clock at night. Most people, particularly in rural areas, feel that it takes a long time to collect all the ballot boxes from around the countryside. As a result, the count does not finish until 2, 3 or 4 a.m. I do not see why everybody should not vote in comfort by 9 p.m., and, if that does not suit them, have a postal ballot. Surely it would be better to stick to local government hours, closing at 9 p.m., than to go on until 10 p.m. Relatively few people vote after 9 p.m. and we are wasting time that could be used to collect the ballot boxes from outlying polling stations and bring them in for the count.
372 I am interested in Article 86 on page 43. dealing with advertising. This is a controversial issue at most elections. People who try to stick to the rules and regulations get infuriated by other parties who engage in fly posting all over the place, particularly on telegraph poles and road signs. Most of us feel that that is illegal. Local authorities are responsible for fly posting under town and country planning legislation, but they do very little about it. It is important to bring home to local authorities that they have a responsibility to stop illegal fly posting of candidates' names, which makes a thorough mess of the countryside and often takes months to clear up. We should take a tougher line. Candidates should know what forms of advertising are legal. The article about advertising on page 43 is very small and does not read the riot act as it ought to.
A final point was raised about the procedure if a candidate dies or defects after his or her name is on the ballot paper. That happens. Anybody who reads the American news will know about the Senate candidate in New Jersey who went a little bit off the rails and the sad death of a Senator in an air crash in Minnesota. The fact that their names were already on the ballot paper is affecting the election in both cases. With the Senate majority on a knife-edge, it is important to know what is legal when it comes to putting names on the ballot paper after the candidate is no longer available for election.
I hope the Minister will have a chance to comment on those few points, particularly the ones about polling times and advertising. Otherwise, I welcome the order.
§ Lord McIntosh of Haringey
My Lords, I am grateful to all those who have taken part in this brief debate and for the general support that has been given to the order. I hope that the way in which I introduced it, without going over the matters that had not been changed, was appreciated.
I shall try to deal with as many as possible of the points that have been raised. The noble Lord, Lord Roberts, talked about the potential for confusion when more than one poll is taking place at the same time. As he rightly said, the same situation will arise in 2003 because of the Scottish Parliament's Scottish Local Government Act 2002. The conclusion has been that there was very little confusion in 1999. The decision to provide three ballot boxes of different colours appeared to work pretty well. I am grateful for the support of the noble Baroness, Lady Carnegy, for that.
The Secretary of State for Scotland has set up a working group to plan for 2003. It is chaired by Scotland Office officials, but includes Scottish Executive, Scottish Parliament and Electoral Commission officials, as well as representatives of electoral administrators in Scotland. That has led to today's consolidation order and—in more direct response to the noble Lord—to the training and guidance for administrators and voter awareness material so that we do not have the problem of variance between local authorities that he fears.
373 I confirm that the polling hours for the elections in May 2003 have been aligned to those for Scottish Parliament elections—from 7 a.m. to 10 p.m. I listened to what the noble Lord, Lord Monro, said about that. The last time I did polling station duty was at the June 2001 election, when I was on from 7.30 or so until 10 o'clock at night. We gave up after about 9.30, but there were still a lot of people coming in and I think it was worth while. In any case, the provision for Scotland is the same as for the rest of the United Kingdom.
On the limitation of expenses, Schedule 1 to the order provides for the supply of copies of the full register to candidates and their agents for electoral purposes. That includes supplying alterations to the register, which are published monthly. The figures should be pretty up to date. There will be plenty of time to calculate the maximum amount of expenditure from the most recent figures.
I congratulate the noble Lord, Lord Monro, on finding a misprint. The maximum expenditure should be £100,000, not £10,000.
§ Lord Monro of Langholm
My Lords, I thought £10,000 would have been more appropriate. I wonder why it is £100,000.
§ Lord McIntosh of Haringey
My Lords, the figure is the same as for other United Kingdom elections.
The noble Lord, Lord Roberts, referred to regional members and removal of candidates who change their allegiance. He rightly said that the order makes provision for the removal of candidates from regional lists by the returning officer and the withdrawal of candidates from the regional list by registered political parties. However, as for Westminster elections, the last time for making such changes is the last date for receipt of nominations. It has always been the case throughout the United Kingdom that any regional list candidate could change his party allegiance after the close of nominations without being excluded from taking a seat as a regional member, if elected. The same is true for a Member of Parliament in Westminster. I am not aware that that has ever happened. It is a theoretical danger, but not a new one.
The noble Lord, Lord Roberts, is correct that a request can be made to the constituency returning officer to recount the regional votes before the result has been transmitted to the regional returning officer, but not after. Paragraph 63 permits the regional returning officer to recalculate the total number of regional votes for each registered party and each individual candidate, but it does not give the facility to recount the regional votes in each constituency at that stage. It was decided in 1999 that any difference would have a minimal impact on the allocation of regional 374 seats. There have been no requests since then to change that policy. Following the experience in 2003 and the results of the review of the elections, which will be undertaken by the Electoral Commission, as required by the Political Parties, Elections and Referendums Act 2000, we shall be happy to look at the issue again if a further review is required.
The noble Lord, Lord Roberts, is right about the death of a candidate. Paragraph 71(3) provides that where the poll at the election is abandoned because of the death of a constituency candidate, the regional returning officer will calculate the allocation of regional seats by using the number of constituency seats gained in all constituencies in the region other than the constituency where the poll has been abandoned. Paragraph 71(4) confirms that the subsequent election of a candidate for the constituency concerned shall have no effect on the validity of the election or the return of any regional members. I am grateful to the noble Lord, Lord Roberts, for having given me notice of those points.
I should like to refer to a couple more of the points made by the noble Lord, Lord Roberts, the first of which is special advisers. Throughout the United Kingdom, any special adviser who is going to take part in any political activity during an election period is required to resign his or her post. My understanding is that almost all of them do so because they do want to take part in politics. I also appreciate the points that he makes about the need for UK broadcasters and the UK Government to be aware of the Scottish elections and the need to avoid undue influence. As far as the UK Government are concerned, guidance is given to departments in order to avoid that sort of problem, just as guidance was given, in June 2001, during the UK election, to the Scottish Executive Members and officials in order that that they should not act in any way prejudicial to the conduct of the elections.
The noble Earl, Lord Mar and Kellie, referred to the role of the Electoral Commission. He was very supportive of the establishment of that body, for which I am grateful. Although he also approved of the changes to proxy voting and postal voting, I understand his point on the misuse of postal votes. Clearly, we have to continue being very vigilant about that. He was also supportive of the need to reduce the number of polling days and combination polls. Again, I am grateful for that.
As to the Scotland Act changes in the constituency boundaries and the number of Members—a point raised also by the noble Lord, Lord Monro—that matter is in the hands of the Boundary Commission, which has been given a remit to report by no later than December 2006. It would be inappropriate for me to comment on that matter while the commission is considering it.
I am grateful to the noble Baroness, Lady Carnegy, for her support for having the same rules in Scotland as in the rest of the United Kingdom and for this consolidation measure. She asked whether there will be a handbook for agents and for those taking part in elections. Yes, a handbook of some kind will be provided by the Electoral Commission.
375 I think that the final point was that made by the noble Lord, Lord Monro, on advertising and fly-posting. I very much agree with him. I think that the worst fly-posting I have ever seen was in the run-up to the Countryside Alliance march in September of this year. The countryside was hideous in the weeks preceding 22nd September. However, as local government is devolved in Scotland, it is for the Scottish Executive to advise local councils on these issues.
I hope that I have covered all the points raised. I commend the order to the House.
On Question, Motion agreed to.
§ Lord McIntosh of Haringey
My Lords, I beg to move that the House do adjourn during pleasure until 9.6 p.m.
Moved accordingly, and, on Question, Motion agreed to.
§ [The Sitting was suspended from 8.53 to 9.6 p.m.]