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Electoral Administration Bill: Committee

15th November 2005

We believe that fairness in the electoral system would be appropriately addressed at parliamentary polling district level.

We believe that fairness in the electoral system would be appropriately addressed at parliamentary polling district level. Votes in different parts of the UK have significantly divergent values because of the enormous variation in the sizes of constituencies. The current boundary commission review proposes constituencies of widely differing sizes-from Hackney, South at 57,000-odd to Banbury at 78,000 and the Isle of Wight at 103,000, with a general over-representation of urban areas. In the 2005 general election, across England the average electorate in seats that elected Labour MPs was 67,592, compared with 73,004 in Conservative seats. The average number of votes cast for the winning party in England was 18,833 in Labour, seats compared with 22,763 in Conservative seats.

We believe that there is a strong case for ending the wide disparities in the size of parliamentary constituencies by introducing a fixed electoral quota, which would be devised, broadly, by dividing the electorate by the number of seats. That would allow for only a small margin of difference, to avoid splitting local government wards. Correspondingly, boundary commission regulations should be amended to ensure that maintaining an equal quota has the rule of priority over other considerations. The boundary commission chooses not to cross county boundaries, but it will cross London and unitary boundaries. That creates an urban bias in the system that makes rural constituencies much larger.

There could also be a more up-to-date review of the size of electorates towards the end of the boundary review process, to avoid determining the size of constituencies on the basis of electoral data from the start of the review, which would subsequently become heavily out of date.

We believe that a fixed quota would be a fairer system, as it would ensure that each elector had the same level of parliamentary representation. Although there is a separate argument for reducing the number of MPs in the House of Commons, a fixed quota can be introduced while maintaining the existing size of the Commons. If there were a wish to provide additional representation for constituent parts of the UK, such as Wales and Scotland, that could be done transparently and explicitly by setting a lower electoral quota for constituencies in those designated parts of the United Kingdom.

Minimum Age

We welcome clause 20, which reduces from 21 to 18 the age qualification for membership of the House of Commons, for membership of a local authority and for election as mayor or assembly member of the Greater London Authority. The clause will require that the candidate is 18 on the day of nomination, or 18 on the day of the poll in the case of a local authority election or an election to the GLA when the election is not preceded by nominations. In a democratic system, it is only fair that all who are eligible to vote are also eligible for election.

The proposed amendment to the clause seeks to change the qualifying time so that the candidate must be 18 by the day of election rather than by the day of nomination. Apart from the fact that the amendment seems to be a keen attempt to grab a few more weeks for 17-year-olds, will the Under-Secretary say whether it would pose any mechanical problems in the event of the election date not being fixed?

Nomination Procedures

The amendment would increase to 100 the number of people subscribing to a nomination paper from the current provision in the Representation of the People Act 1983. It would require candidates to obtain 102 subscribers, including a proposer and seconder, to validate their nomination, rather than 10, including a proposer and seconder, which is the current requirement.

We note, as did the hon. Member for Somerton and Frome, that the Electoral Commission does not support the amendment. The commission recommended two options to improve the deposit and subscriber system in its 2003 report ''Standing for election in the United Kingdom''. Both options recommended the abolition of the current subscriber system, following extensive review and consultation. We are in favour of maintaining deposits as a barrier to nomination in elections. However, the greater the number of subscribers required at the point of nomination, the greater the barriers to participation in the democratic process and we must be careful to maintain the correct balance.

The amendment goes too far. Where candidates seek to represent, and have been selected by, registered political parties, the additional requirement to provide a list of subscribers is particularly unnecessary. Obtaining 100 signatures on a nomination form would be a time-consuming operation and for some candidates potentially very difficult or even impossible. The requirement to obtain signatures does not represent a true test of electoral support, and acquiring signatures is arguably more a test of administrative competency than of electoral support. In addition, requiring a substantial number of subscribers can significantly increase the administrative burden on returning officers as they have to verify all signatures for each candidate.

It also seems unlikely that the 100 signatures would prove a genuine barrier to extremist groups. Indeed, extremist groups would often be the most able to rely on a small but sufficient number of dedicated supporters to meet such a requirement. Equally, it seems unfair to genuine, mainstream candidates who may not be well resourced-some of them may have few active local supporters to count on and yet may still gain large numbers of votes-to force them to spend time collecting these signatures rather than allowing them to devote all their efforts to the real democratic business of an election, meeting and persuading those who are not already their supporters. Given the existing deposit rules, which we support, the extra burden would be unnecessary and probably ineffective.

With regard to parliamentary election rules, reducing the proportion of votes that a candidate at a parliamentary election has to poll in order not to forfeit his deposit. Currently he has to poll 5 per cent.-one-twentieth-of the votes cast; the subsection lowers that to 2 per cent., or one fiftieth.

Deposits for Westminster parliamentary elections were introduced in the Representation of the People Act 1918 following a number of candidatures that were regarded as frivolous. There was no full parliamentary debate on that aspect of the legislation because all the main parties represented at the time supported the initiative. The 1918 legislation allowed election costs to be met for the first time by central Government. Previously, candidates had met costs collectively, so the deposit acted as a safeguard against candidacies that had no realistic chance of success but which nevertheless added to the complexity of the process. The requirement for deposits and subscribers has therefore been in force since 1918 for all elections in the UK except for local government, parish and community council elections.

All previous inquiries into electoral law by the Home Affairs Select Committee have concluded that the threshold should be higher. Suddenly, with this Bill, the position is being reversed, and we are extremely concerned that reducing the threshold will give a major boost to extremist parties such as the British National party, which benefit from the freepost electoral addresses and election broadcasts. As members of the committee know, all candidates in parliamentary elections receive a freepost mailing to each elector. That is worth some £10,000 to £15,000 in free postage.

In addition, parties can be eligible for party election broadcasts on television and radio. In fact, BBC rules allow a party election broadcast across Great Britain if a party nominates in one sixth of all British seats. Ofcom rules for commercial television state that in order to qualify, parties must contest one sixth or more of the seats up for election, with the four nations of the UK considered separately. If candidates are nominated in one or two constituent parts of Britain, their parties will be offered broadcasts on ITV in the appropriate nations. Parties qualifying in all three nations are also offered Channels 4 and Five as well as national commercial radio. One sixth of the seats in England are currently equivalent to 88 constituencies.

To illustrate the point, in the 2005 general election, lowering the threshold to 2 per cent. would have saved the BNP £36,500, equivalent to allowing it to nominate candidates in a further 73 constituencies. The 5 per cent. threshold is there to deter frivolous and extreme candidates who might otherwise use elections as a form of self-promotion. If these provisions had been in place at the last election, the major parties would not have been significantly affected by the change. The principal beneficiaries would have been parties such as the BNP who do not command popular support and should not be encouraged to peddle their propaganda.

A further problem with the subsection is that a 2 per cent. threshold would be inconsistent with the 5 per cent. minimum share of the vote necessary to gain representation, which is in use in the additional members system of proportional representation in Britain. At a time of growing concern about the rise of extremist parties, it somewhat beggars belief that the Labour party wants to lower the hurdles for the far left and the far right to receive freepost mailings and election broadcasts in parliamentary elections.

In our free democracy, allowing extremists to run for election is a necessary evil, but checks and balances should exist to prevent the system of free mailings and broadcasts from being abused. That is exactly what the threshold of 5 per cent. does. Lowering the threshold will help the likes of the BNP spread its propaganda courtesy of the taxpayer, despite the fact that its views do not carry mass public support.

Description of Independant Candidates

Independant Candidates are separate and unaligned to any organisation or pressure group. If candidates wish to run under a particular banner, they should register as a political party and be subject to the same public scrutiny and accountability that registered parties face under the Political Parties, Elections and Referendums Act 2000, such as the publishing of their accounts. It cannot be of service to the important role of independent candidates in our democracy for their independence to be eroded by descriptions of a partisan nature, or for special privileges to be bestowed on them that are unavailable to political parties.

Amendments Nos. 48, 49 and 50 are essentially probing, intended to draw attention to the need for the clause to operate with certainty and to identify some of the problems that could arise if it were applied inconsistently. We want to add certainty to a vague clause that could lead to inconsistency. We understand that each decision will need to be made case by case, but that does not mean that there should be inconsistency of application to similar cases. Returning officers will operate under guidance issued by the Electoral Commission, and that is most welcome.

If returning officers are to make such a decision, and if that decision has to be based on Electoral Commission guidance, it should be made clear and certain that that is the case. That would ensure that the commission guidance was more strictly applied. Additional legislation may be needed to ensure consistency between all returning officers when it comes to deciding whether there is a conflict.

The Bill gives returning officers authority without consultation, provided that they have regard to guidance from the Electoral Commission. We wonder whether that will be sufficient. For instance, the Bill states that descriptions should not be the same as the description of another candidate and should not be

''likely to lead electors to associate the candidate with a registered political party''.

That seems vague. Once again, is ''Independent Left'' acceptable? Is ''Independent Labour'' misleading? The final decision would depend on the opinion of the returning officer, and there would thus be no consistency among constituencies or council areas. What opportunities would be available for other candidates or electors to contest the judgment of the returning officer?

Subsection (4) would amend rule 12 in the 1983 Act so as to require the returning officer to inform a candidate if he considered that the candidate's desired description was ''misleadingly similar'' to that of another candidate. Amendment No. 51 would extend the requirement on the returning officer to include informing a candidate if he considered that the candidate's desired description was

''misleadingly similar'' to a 'registered description', as detailed in section 28A or 28B of the Political Parties, Elections and Referendums Act 2000''.

The amendment would therefore help to protect registered descriptions that political parties wished to use on nomination papers, and we believe that it is a sensible extension of the requirement on the returning officer.

The clause makes amendments enabling independent candidates to include a description on their nomination papers and on the ballot paper. It also allows independent candidates to include a description other than the word ''independent'' on ballot papers. We have concerns about it for a number of reasons, several of which were mentioned in the debate on the amendments to the clause.

The present position was summarised in a 2003 report by the Electoral Commission, ''Standing for election in the United Kingdom'', as follows:

''A person can stand as a candidate for a party only if the nomination paper is submitted with a certificate of authorisation of candidature issued by or on behalf of the Nominating Officer of a registered political party.

Any candidate can include a description on the nomination paper that will be included beside the name on the ballot paper. However, if a candidate is standing independently, he/she can only have 'Independent' inserted beside their name. If the candidate is standing for a registered political party, a description of no more than six words may be included, provided that they have produced a valid certificate of authorisation from their party.''

Independent candidates should be required to sign a declaration along with their nomination papers, confirming that they are not standing on behalf of a collective, a party or a commercial organisation. The clause introduces a new rule into the parliamentary elections rules. The rule will allow a six-word description for independent candidates. The description must not be the same or confusingly similar to the description of another candidate. The exception is the word ''independent'' which may be used by any or all independents.

The clause makes provision for a list of prohibited words or expressions, which are to be specified by the Secretary of State after consulting the Electoral Commission, and that is certainly welcome. The returning officer is to decide on the acceptability of the description, but he must have regard to guidance issued by the Electoral Commission. We welcome that provision, which will go some way towards ensuring consistency of application.

Descriptions must not be obscene, offensive or likely to lead to the commission of an offence. The clause also provides for independent candidates to have an emblem, ''IND'' or ''ANNIB'', next to their name on the ballot paper, and to make a statement that they have not been selected to stand for a registered political party. Nevertheless, if there is to be a description, it would not be a substitute for including the word ''independent'' in that description.

The clause allows independent candidates to include a description other than ''independent'' on ballot papers. We have a problem with that, for various reasons. First, the wording of the clause could be seen as ambiguous; it appears to me that if independents use the word ''independent'' in their description, they would not be limited to a six-word description, but could have a description of unlimited length. Is that correct?
Secondly, as I said earlier, independents are, by their very definition, independent. They are separate and independent from any organisation or pressure group. If candidates wish to run under a banner, they should register as a political party, and they should be subject to the same public scrutiny and accountability that registered parties face under the Political Parties, Elections and Referendums Act 2000. The non-partisan position of independents is important in our democracy, and is worthy of protection. These proposals could undermine that position, both by giving them certain advantages over candidates standing for political parties and by altering their essential political neutrality. These measures would weaken the long-term position of independents, and open the electoral system to even greater confusion than already exists.

Thirdly, the desire to maximise opportunities for independents to describe themselves in any manner they wish is inconsistent with the Government's other proposal radically to restrict the ability of political parties to do just that. I do not wish to stray into a discussion of another set of amendments, but by contrast clause 47 relating to the descriptions of political parties, seeks to restrict the ability of registered political parties to use variants of their descriptions. For the first time, parties will be limited to only five different types of description-although the Secretary of State can vary that number. Independents will be able to use any number of potential variations, but political parties will not. The Minister cannot simultaneously advocate simplicity for political parties and diversity for independents. That is both inconsistent and somewhat biased. Therefore, we oppose the proposals.

If we are to accept that the historical position of independents on a ballot paper has to be altered to allow the six-word description, the most viable method is to insist on the word ''independent'' being included in those six words. That would allow the description, but it would limit confusion for the elector and go some way to protect the position of the independent candidate as something distinct and worthy of separate classification-which I suspect that the majority of independents would be anxious to ensure for themselves. Allowing the six-word description with no obvious reference to independent status would maximise confusion, penalise political parties and downgrade independents to becoming little more than one-man political parties by the back door.

We recognise that there may be concerns that current rules governing the registration of political parties control only the Electoral Commission's register of party names, rather than the party names used on ballot papers, which may be variants of those on the register. However, the solution proposed is demonstrably wrong.

Third Sitting Thursday 17th November 2005

Meaning of Election Expenses for Purposes of the 1983 Act

The Conservative party has various concerns about the constitution of election expenses, which are addressed in amendments Nos. 56 and 57. New schedule 4A itemises expenditure that is considered to count as election expenses. New section 90ZA(2) provides that it is immaterial whether items are used before or after the candidate is adopted, so long as they are used within the relevant period. The explanatory notes state that the lists of items in the schedule are based on those used for political parties' national campaign expenditure under the Political Parties, Elections and Referendums Act 2000. The Electoral Commission is given power to prepare a code of practice on expenses that is subject to the negative procedure for statutory instruments and allows the Secretary of State to amend the list by order.

The election expenses listed in new schedule 4A includes accommodation and administrative costs but does not provide further explanation as to whether that includes, for example, the cost of permanent staff. The policy report also considered the definition of election expenses, again amended by PPERA, and considered the situation to be unsatisfactory. It thought that some items could reasonably be excluded from the definition of election expenses; for example, the use of a candidate's home computer or the cost of posters produced for previous elections.

The commission considered that a prescribed list of election expenses could form the basis of an elections return and provide greater clarity. Schedule 4A is rather vague and our amendment would clear up the long-standing ambiguities. The amendment would ensure that the Electoral Commission was expressly mandated to prescribe clearly and comprehensively in the code of practice governing election expenses the precise meaning of those ambiguous terms. The effect would be, we hope, to clear up the extent to which permanent staff, for example, constitute election expenses.

Election expenses are an area fraught with difficulties and suggestions of foul play can greatly damage the reputation of candidates and the electoral system. We must therefore do all we can to make the rules as clear and unambiguous as possible, which they are not.

This country has a long history of political parties fundraising during election campaigns. Public awareness of politics increases during election periods and this represents a good opportunity for all political parties, great and small, to discuss policy and ideas with the public. It is the time when the public engage most with politics and political parties, and if individuals wish to help to further a course of policy in which they believe, they should have the freedom to do so.

Without the amendment, political parties are unlikely to send specific mailings about fundraising, thereby denying individuals an easy opportunity to financially support parties. Also, some political parties might try to include fundraising mailings with postal vote applications, which does not seem particularly desirable or even practical; the fundraising responses have to be returned to the party and the postal vote applications to the local council. Given that most of the money raised during the campaign does not fund it but normally replenishes that already spent and funds future campaigns, there seems little credence to the argument that the money affects the forthcoming elections.

Finally, such fundraising does not concern the great wealthy political donors who give to all the parties, but rather the huge numbers of ordinary individuals who choose to give small amounts of money at the times they most feel politically engaged. In an age of decreasing popular involvement in political parties and the political process, such low level financial support and political involvement is important and should not be discouraged.

Amendment No. 8 seeks to remove all subsections relating to a change in the period in which election expenses are calculated. The proposal in subsections (5) and (6) is to impose a four-month period in which all expenses incurred in promoting or procuring a candidate's election are calculated. If the purpose of the amendment is to remove the new provision creating a four-month period in which expenses would be calculated and to retain the existing time frame running from the date of the election being called, it is most welcome. We strongly oppose the extension of the period for expenses to four months. That proposal does not stand up to close scrutiny, which is why we have tabled our own amendments to the clause.

As well as regulating national campaign expenditure, the Political Parties, Elections and Referendums Act 2000 made changes in the start date for the calculation of expenses of individual candidates, as the drafting of the Representation of the People Act 1983 was considered to be uncertain and unsatisfactory. The period was considered to have begun when the person was declared to be a candidate, and there was case law dating back to the 19th century on when that declaration had occurred in reality. The 2000 Act changed the law so that the relevant start date for becoming a candidate was the dissolution of the relevant legislature or the subsequent declaration of candidature. There were also provisions to allow for occasions on which expenses had been incurred before that date, such as the advance purchase of stationery.

In its 2003 policy review, ''Political Parties, Elections and Referendums Act 2000-Recommendations for change'', the Electoral Commission noted the concern of a number of parties, candidates' agents and electoral administrators that the start date was too close to the election, leaving a significant period of campaigning unregulated. The Commission recommended a clear cut-off date of four months before a poll to provide clarity, accepting that there were difficulties with that approach for general elections, in which national campaigning was subject to a 365 day cut-off limit.

The Bill changes the period to four months before the date of the poll for general elections and local elections; for all by-elections, the start date will be when the vacancy occurs. We oppose that change, for a number of reasons. The date of general elections is not widely known in advance. In a country without set term limits for general elections, although the Minister might be privy to the Prime Minister's views on the election date, no other candidates are likely to be, certainly not Opposition ones. Those candidates should not be forced to guess the date of the election for the purposes of their expenses. The proposed changes would create confusion as to how much parliamentary candidates may legitimately spend. It is already difficult enough for political parties to second-guess their likely national campaign spend; it will be even more difficult for individual candidates.

Even Prime Ministers do not always know for certain the date of an election until well into the four-month period. For example, the delay of the 2001 general election from May to June, because of the foot and mouth crisis, highlighted how candidates could easily be caught out. A by-election would be equally problematic. As far as I can see, this Bill would start the expenses period at the moment of the death or resignation of a sitting Member, not the moment when the by-election is called. A party may not chose a candidate until weeks later, and it seems absurd that that candidate could find a large quantity of his or her expenses already spent, long before they began campaigning.

The changes could lead to a return to the fake and non-transparent days of prospective parliamentary candidates, action committees and other equally bizarre titles that once had to be used to avoid incurring expenses from the start of the four months until the notice of election. The proposals will do nothing to restrict or stop the political arms race of spending on elections; funds will just be spent in different ways. There would also need to be a substantial increase in the expenses allowed, because of the longer period of time over which expenses will be incurred. That would put political party candidates at a disadvantage compared with independents, as political parties with offices and staff will run up bills for longer. It does not appear that those matters have received any consideration during the drafting of this Bill.

The suggested amendments remove the proposed four-month period and replace it with the existing period, which runs from the notice of the election. The Electoral Commission agrees with a standardised regulated period for candidates' election expenses that begins on a date specified in legislation, but it acknowledges that four months is not the only appropriate period. As I said earlier, we support measures to increase fairness and transparency in electoral expenses, but these proposals are ill-conceived and could be unworkable. Indeed, in their implicit assumption of set term limits, and that a by-election campaign begins in earnest at the very moment of an unfortunate MP's death, they bear little relation either to the constitution or to reality.

Fourth Sitting Thurdsday 17 November 2005

Ballot Paper Design

The current design of ballot papers for first-past-the-post elections is widely accepted as being easy to understand. There are long-standing issues about the use of the official mark, which has to be applied by hand to each ballot paper at the polling station under rule 37 of the parliamentary election rules.

The procedure dates from the Ballot Act 1872. On occasion, votes have been invalid because of human error in failing to apply the official mark. That was a feature of the election petition at Winchester after the 1997 general election. For some years, there has been disquiet about the policy of numbering ballot papers and counterfoils, in case the two are combined to facilitate vote tracing other than in the context of an election petition or criminal investigation, although counterfoils can be used to trace electoral offences.

That issue was explored in 1997 by the Home Affairs Committee, which supported a limited view that the system played little part in the prevention of personation, and that concerns about possible abuse of the system by state agencies outweighed other considerations. The Electoral Reform Society evidence considered that the existing system should be maintained because of its use in local government elections on a number of occasions to uncover fraud. The issue was raised again by the Organisation for Security and Co-Operation in Europe report on the 2005 election, which recommended the abolition of serial numbers on ballot papers. The Government response to that report set out the justifications for the current approach.

The Electoral Commission made proposals to improve the security aspects of ballot papers in its policy report ''Equal access to democracy'', summarised in ''Voting for change-An electoral law modernisation programme''. It recommended the use of bar codes in place of serial numbers on ballot papers for detection of fraud, and watermarks in place of the official mark to reduce the scope for human error to invalidate the vote cast. The Government response accepted both proposals. The Department for Constitutional Affairs paper of May 2005 announced proposals to change the design of ballot papers in order to improve security. The proposed changes were to improve security markings on ballot papers through watermarks or security printing and to replace serial numbers on ballot papers with bar codes, allowing fraudulent votes to be more easily identified and removed.

The paper noted that bar coding had been used in a number of recent electoral pilots, notably in the European parliamentary elections of June 2004, local elections and the north-east assembly referendum in November 2004. Bar coding would also allow electors to check with the returning officer whether their postal votes had been received before the close of voting. It would also assist returning officers who are asked to issue replacement ballot papers to electors who had not received them. At present, that is possible only up to 5 pm on polling day.

The May 2005 policy paper also announced proposals to allow the automated production of postal vote documents that did not look identical to the ballot paper. That has been the subject of a number of pilots. At present, statutory requirements ensure that postal ballots are identical to those cast at polling stations. The policy paper says:

''The law as it stands was originally designed to ensure that the rare postal vote did not stand out against the ones cast at the polling station which would potentially allow people to identify how someone voted''.

Clause 29 amends the provisions on the design of ballot papers to allow for two columns of named candidates in elections with several candidates. It allows the Secretary of State to make regulations on b

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