§ 7.41 p.m.
§ Lord Evans of Temple Guiting
rose to move, That the draft order laid before the House on 30th January be approved [9th Report from the Joint Committee].
The noble Lord said: My Lords, the purpose of the draft order is to bring, so far as is practicable, the provisions relating to elections to the National Assembly for Wales into line with those which apply when there is a parliamentary election anywhere in the United Kingdom.
The statutory authority is Section 11 of the Government of Wales Act 1998, which empowers the Secretary of State to make provisions relating to Assembly elections. The order regulates most aspects of the process for electing and returning Assembly Members, as well as establishing mechanisms for questioning an election, and for remedying irregularities.
The first Assembly elections were conducted under the terms of an order made in 1999. That order drew heavily on the provisions of the Representation of the People Acts, which govern parliamentary elections throughout the UK and local government elections in England and Wales. That was absolutely right as we were aiming for consistency of practice. The 1999 order successfully achieved that objective.
However, since 1999, the Government have taken great strides forward in their commitment to modernise electoral law. Much of that was achieved through the Political Parties, Elections and Referendums Act 2000, which, among other things, established the Electoral Commission as an independent overseer of UK electoral processes. That Act, together with the Representation of the People Act 2000, made significant changes to the legislation on which the 1999 order was based.
An amendment order in 2002 implemented the most essential changes which needed to be in place in the event of a by-election. However, it was always recognised that further amendments would be needed.
82 Including these further changes in a second amendment order would have caused practical difficulties both for electoral administrators and for the political parties and their candidates, who would have needed to consult at least three separate documents to clarify every detail of the rules and procedures. We therefore decided to consolidate into a wholly new order all the changes which have become necessary since 1999.
So this order restates the amendments made in 2002. In addition, it introduces new changes covering, in particular: offences in relation to false statements in applications for absent and proxy votes; false statements in nomination papers; restrictions on the publication of exit polls; control of donations to candidates; candidates' expenses; the broadcasting of local items; and, finally, provisions relating to the consequences of conviction for corrupt electoral practice.
The order is lengthy and detailed—more than 250 pages long. In view of that, I hope that the House will find it helpful if I concentrate my comments on areas where we are bringing forward significant changes. The first is in Article 13, which clarifies the legal implications of making false statements in relation to an application for a postal or proxy vote. Anyone found guilty of such an offence will be liable to a fine not exceeding level 5 on the standard scale. It may he of assistance to the House if I explain that level 5 is the highest point on the standard scale of penalties for criminal offences. It currently stands at £5,000. That is consistent with the provisions for parliamentary elections in Schedule 4 to the Representation of the People Act 2000.
Two further offences appear as "new" in relation to National Assembly elections, although, again, they replicate provisions already applying to parliamentary elections. Article 32 deals with false statements in nomination papers and related documents, while Article 34 extends to Assembly elections the prohibition on the publication of exit polls, as introduced for elections of other kinds through the Representation of the People Act 2000. It will be an offence to publish any such details until after the poll has closed at 10 p.m.
Article 39, together with Schedule 6, makes new provisions about the control of donations to candidates. Those reflect provisions for other elections implemented in Schedule 2A to the Representation of the People Act 1983. The rules make absolutely clear that, as well as direct financial support, they also cover sponsorship, donations in kind, and loans on non-commercial terms. Assembly candidates will be subject to the same list of permissible donors as candidates for election to Parliament. The schedule also sets out clear rules for the reporting of donations, thus ensuring that all sums are accounted for.
I move ahead to Article 66, which introduces new provisions to regulate the broadcasting of local items during the election period. They require the broadcasting authorities to adopt a code of practice with respect to the participation of Assembly 83 candidates in items about the constituency or electoral region in which they are standing. The provisions reflect changes in respect of other elections introduced by Section 144 of the Political Parties, Elections and Referendums Act 2000.
Part IV of the order makes provision for legal proceedings. It is designed to ensure that comparable procedures apply in connection with Assembly elections as apply in connection with elections to Parliament. The one change of significance is in Article 122. It deals with the circumstances in which an individual is convicted of corrupt or illegal practice while acting as a sitting Member of the Assembly. The conviction would require such a person to vacate his or her seat. However, it is right that a short period of grace should be allowed while the Member has an opportunity to appeal against conviction. That is now provided for in the expanded Article 122. However, during any such period of grace, the individual would be suspended from performing the functions of an Assembly Member.
Schedule 4 deals with the combination of polls when Assembly elections are held on the same day as those for local authorities. These provisions are essentially unchanged from the existing order. However, they have been altered to reflect the future possibility of mayoral elections in Wales.
This is a complex order. It has to be to ensure comprehensive coverage and to provide us with the necessary reassurance that Assembly Members will be elected through an equitable and transparent process which everyone can trust. In accordance with the requirements of the Political Parties, Elections and Referendums Act 2000, the draft was the subject of consultation with the Electoral Commission before it was laid before Parliament. The commission has confirmed that it is content with the version we are now considering.
In addition, the Government have consulted with the Assembly, in view of the wide ranging obligations that the order places on it. Comments were also invited from representatives of Welsh electoral administrators, and from the four political parties currently represented in the Assembly. The final draft now being considered takes full account of all comments received from those sources. I commend the order to the House.
Moved, That the draft order laid before the House on 30th January be approved [9th Report from the Joint Committee].—(Lord Evans of Temple Guiting.)
§ Lord Roberts of Conwy
My Lords, as the Minister explained, this is the third order of its kind to come before us. My impression is that this one is bigger and bulkier than any of its predecessors. I take it that this is the order that will govern the Assembly elections in May this year. I hope that some advance publicity will be given to the contents, especially the provisions relating to proxy and postal voting, as knowledge of how to obtain such votes is patchy at present. They could help to improve turn-out, which last time was 46 per cent—pretty low.
84 A host of questions arise from the order. I can refer to only some in the limited time available. Article 15(1) refers to the combination of Assembly and local government elections on the same day. That begs the question of why local government elections, which should fall this year, have been postponed to next year. I do not think that we have had a satisfactory explanation—one that does not savour of party political advantage. Can the Minister confirm that in the event of a combined elections day in future, the polling hours will be the same? Article 45 deals with the limitation of election expenses by the number of electors on rolling registers. Can the Minister say what leeway will be allowed for candidates whose expenses were within the limit in the period prior to the election but marginally over the limit due to a fall in numbers on the register at the time of the election? There is some concern too about local authority familiarity with the use of rolling registers.
Turning to Part 4 of the order and legal proceedings, again a number of questions arise. Article 87 deals with time limits for the presentation of petitions concerning undue elections or returns. Where allegations come to light after the time limit, which may often be the case, how can redress be sought? Incidentally, is there a similar time limit for elections to the United Kingdom Parliament?
I am tempted to pass Article 99 but it is worth noting that if a court decided that the election of a constituency member were void, nevertheless the validity of regional members election, although related to the constituency election, would not be affected. I suppose that a line has to be drawn somewhere.
Article 115(2) states that where corruption has occurred to further the number of votes received by a political party at regional level, such corruption shall be treated as having had the purpose of helping each candidate on that party's list. So presumably they will all be punished in the same manner whether they were party to the corruption or not, or even if they reported it?
Article 122(4) states that any person elected to the Assembly who is then convicted of electoral malpractice must vacate the seat. Even if that person appeals successfully against his conviction, the article implies that he will not be able to reclaim the seat that was rightly his. That can hardly be just.
Similarly, Article 129 appears to be very sweeping in imposing a liability to punishment on all members of an association that commits an offence under the order, whether they were aware of the offence or not and possibly having reported it to the relevant authorities. It is surely unjust that a law-abiding member of an association who, unknown to him, breaks the law should be held responsible.
Schedule 5, paragraph 17, allows for the publication of regional party lists. What intrigues many is what the position would be if, after the close of nominations, a candidate on the regional list of a registered political party defected to another party. Would that candidate be excluded from the list or would that candidate still be elected if his original party was allocated a sufficient 85 number of seats? I admit that the question seems far fetched until the case arises. I am not at all sure that I have understood paragraphs 52 and 58 of Schedule 5 and their relationship to each other.
Paragraph 52 allows for a recount of regional votes cast at constituency level but a close run between parties at that level will hardly matter until the votes are added up at regional level. Paragraph 58 allows the agent present at the calculation of the regional totals to request, prior to the allocation of seats,the regional returning officer to provisionally ascertain those results again".Does that mean that agents have the right to ask for a recount of the regional votes in each constituency or simply a recalculation of the sum of constituency totals received at regional level? It is not clear. The difference between the competing parties will probably be most critical and the demand for a recount will probably be the keenest when the last seat is allocated.
There are a number of other points that I hope the noble Lord will examine, such as the referencing in paragraph 7 of Schedule 3 to paragraphs (4) and (6) of Article 31 that do not exist in my copy. There is also a reference in Article 127 to a time limit for commencement of legal action in Scotland and Northern Ireland which seems to be an oddity in an order relating to Wales. Otherwise, we shall not oppose the order.
§ Lord Thomas of Gresford
My Lords, we on these Benches welcome the order. As the noble Lord, Lord Roberts of Conwy, said, it may be bigger and bulkier, but at least it brings into line the electoral law in Wales with the reforms in the law that have passed through Parliament in the years since 1999.
One matter that concerns everyone with the interests of Wales at heart is low turn-out at elections. A turnout of 46 per cent is not satisfactory. I was a member of the Sutherland commission on proportional representation in local government elections. We spent much time examining and taking evidence on the ways in which we could encourage more voting. The experiments that have been tried in local government elections in England do not appear in this regulation at all, so I assume the Government feel that no clear option emerged from the experiments a year or two ago. That is a shame because I think that this is an opportunity to employ more imaginative ways of encouraging people to vote.
The Sutherland commission looked, for example, at supermarket voting. One problem is that people from a number of constituencies visit supermarkets so it would be rather difficult to organise ballot papers. I believe that the Government should pursue the matter through the Internet. Young people—regrettably, those least likely to vote—use the Internet and e-mail as their normal means of communication. I think that that is a step toward losing the use of their legs through a process of natural selection. However, it is necessary to consider new methods.
I hope that the National Assembly's success—which has been considerable over the years, although insufficiently publicised, due to the way in which the 86 media approach its deliberations—will have got the message through to people that their daily lives are affected by the representatives who are elected to the Assembly. I sincerely hope that proper publicity will be given to the order, so that more people will turn up at the ballot box or use proxy or absent voting, as circumstances may permit. We welcome the order.
§ 8 p.m.
§ Baroness Gale
My Lords, perhaps may I ask my noble friend to clarify a matter raised by the noble Lord, Lord Roberts: that of the postponement of the local elections from 2003 to 2004. That is a devolved matter and is exclusively for the Welsh Assembly, not for Westminster.
§ Lord Molyneaux of Killead
My Lords, I hesitate to encroach into what is purely a Welsh matter. but my point relates to that made by the noble Baroness. With an Assembly with a fixed term, if it should be necessary to vary the date of polling day, could that be achieved by order or would a Bill—primary legislation—be necessary?
§ Lord Evans of Temple Guiting
My Lords, I am most grateful for the contributions to this short debate about a long order. It represents a vital part of the democratic process in Wales. It is important not only that the Assembly elections are conducted fairly but that they are seen to be fair. It is essential that voters know that the results will reflect as closely as possible the wishes of the electorate.
Several interesting points have been made that I shall attempt to answer. If I fail to answer any of them, noble Lords who have asked them will receive a letter from me within the next few days.
The noble Lord, Lord Roberts of Conwy, first asked about publicising the availability of postal and proxy voting. That is closely connected with an interesting point made by the noble Lord, Lord Thomas, about making voting more accessible and attractive. I personally entirely agree with the noble Lord about the importance of the Internet, especially in encouraging young people to vote. The Government share the wish to encourage a greater take-up of such voting rights. I understand that during the coming weeks the Electoral Commission will take steps to raise public awareness of them in advance of the Assembly elections.
Although there are still conditions to be met for proxy voting, everyone is now entitled to request a postal vote. I know that several electoral registration officers in Wales have already written to electors in their areas inviting them to do so. Earlier this month, my right honourable friend the Secretary of State for Wales urged other local authorities to follow that lead. The benefit of such an approach is well illustrated by the experience of two south Wales councils that between them cover five Assembly constituencies. As a result of a recent mail shot, the number of people registering for postal voting in those areas has doubled.
87 The noble Lord, Lord Roberts, then asked about the combination of polls. The decision to defer the ordinary council elections from 2003 to 2004 was, as correctly identified by my noble friend Lady Gale, a matter for the Assembly. However, it is quite possible that local elections will coincide with the Assembly elections, and I can confirm that where and when that happens, the polling hours of 7 a.m. to 10 p.m. will apply to both.
As for election expenses, Article 45 makes it clear that the limit will be based on the number of electors on the register, as it has effect on the day of publication of the notice of election—several weeks before the election itself. That is also the point from which expenditure or the use of other assets becomes subject to limitation. Any variation in elector numbers during a short period is likely to be small, so it should be possible for candidates to plan and manage their expenditure in order to comply with the limit.
The noble Lord, Lord Roberts, also raised questions about the provisions for legal proceedings in Part 5 of the order. I recognise that the requirement may give rise to difficulties in a small number of cases. However, it is in the interests of justice that we have clear and specific rules, so that everyone knows where they stand.
The provisions in the order are consistent with those applying to parliamentary elections. The Government believe that we have struck the right balance—that has not been questioned by any of the groups that had an opportunity to read early drafts of the order. But if particular problems emerge that lead to the electoral commission recommending changes, I assure the noble Lord and the House that the Government will consider them carefully.
I now turn to the question of the noble Lord, Lord Roberts, about the possible defection by a party list candidate. I confirm that, up to the time of the election and the initial return of Members, the position of the party list candidate is no different from that of constituency candidates—or, indeed, of candidates for election to Parliament. In the unlikely event of defection in the few weeks between nomination and election, the list candidate's right to be returned would be unaffected.
The position is different when selecting top-up candidates to fill vacancies that arise later. In those circumstances, the returning officer is required to contact the relevant party to establish whether the candidate should be treated as being included on its list.
I now turn to the comments of the noble Lord, Lord Roberts, on paragraphs 52 and 55 of Schedule 5, which relate to the count of votes in the regional election. As the noble Lord said, paragraph 52 allows a recount of regional list votes at constituency level, prior to the results being notified to the regional returning officer. Under paragraph 58, the provisional ascertainment of results can be subject to recalculation, but that does not envisage a further recount of individual votes. It was decided in 1999 that any difference would have a 88 minimal impact on the allocation of regional seats. The Government see no present need for change. However, the experience of the 2003 elections will be subject to review by the Electoral Commission, and we shall be happy to examine the matter again, if the commission's findings suggest that that is necessary.
I am grateful to the noble Lord for the points of detail that he raised. If I have missed any out, I will, as I said, write to him tomorrow. I assure the House that we shall examine them closely and consider whether they call for further action.
I am grateful to the noble Lord, Lord Thomas of Gresford, for his interesting points about making the election process more attractive. As I said, I agree with everything that the noble Lord said. In answer to the noble Lord, Lord Molyneaux of Killead, I say that the Government of Wales Act 1998 gives my right honourable friend the Secretary of State a power to change the date of the Assembly election. The Government have no current plans to do so.
§ On Question, Motion agreed to.