European Union Referendum (Conduct) Regulations 2016

Lord Bridges of Headley Excerpts

Monday 22nd February 2016 Grand Committee

Moved by

[Lord Bridges of Headley]

That the Grand Committee do consider the draft European Union Referendum (Conduct) Regulations 2016.

Relevant document: 24th Report from the Secondary Legislation Scrutiny Committee

[The Parliamentary Secretary, Cabinet Office (Lord Bridges of Headley) (Con)]

My Lords, the draft conduct regulations set out the detailed framework for administration of the referendum poll and are largely procedural in nature. I would like to start by thanking members of the Joint Committee on Statutory Instruments, which considered and approved these draft regulations on 5 February, and the Secondary Legislation Scrutiny Committee, which has also considered them and published a considered and helpful report on 11 February.

The conduct regulations specify items such as the way that ballot papers will be issued and how voting will take place in polling stations. They also specify the arrangements for absent voting at the referendum, which provide for people to vote by post or by proxy as an alternative to voting in person. They cover the arrangements for the counting of votes and declaration of results as well as the way that ballot papers and other referendum documents will be disposed of following the poll. Existing electoral offences such as double voting are also applied to the referendum by the regulations.

As noble Lords will no doubt be aware, all elections have conduct rules—they are a routine part of every British poll. We have modelled these conduct regulations on the rules that we used to administer the parliamentary voting system referendum in May 2011, which were themselves modelled on those used for UK parliamentary elections. The Parliament and Government of Gibraltar will make rules for the administration of the referendum there. In addition, minor changes to the UK rules have been required to reflect the fact that the European Union referendum will take place in Gibraltar as well as in the United Kingdom.

Noble Lords will also note that we have also taken into account changes in electoral law since the 2011 referendum as well as recommendations from the Electoral Commission. For example, in line with the Electoral Registration and Administration Act 2013, the regulations provide for people who are queuing at the point when a polling stations closes to vote.

The conduct regulations were published in draft in July 2015 in order to give the Electoral Commission, Members of Parliament and other interested parties an opportunity to review their content and to comment. This gave electoral administrators significant notice and allowed them to begin their planning activity far in advance of the poll. The responses that we received, which were largely technical in nature, were carefully considered before the conduct regulations were finalised. I beg to move.

[Lord Kennedy of Southwark (Lab)]

My Lords, I say at the outset that I genuinely have no issues with the regulations before me. They are what I would expect to ensure a well-run, efficient referendum, and ensuring a well-run referendum is in everyone’s interest. We must never allow the conduct, or otherwise, of any ballot, election or referendum to become the story. However, I have a number of questions for the noble Lord, Lord Bridges of Headley, and I will go straight into them.

How will the noble Lord ensure that counting officers and their staff have sufficient resources in place to conduct this referendum properly? What plans do the Government have to impress upon the chief counting officer, the regional counting officers and the local counting officers the importance of delivering a well-run referendum and of avoiding past mistakes in elections? Do the Government intend to impress upon the chief counting officer the need to use her powers of direction at any point where she feels that confidence in the running of the ballot could be undermined by poor practice by counting officers and their staff?

We need an absolute guarantee that ballot papers for every single voter in the UK will be printed and available at the polling station—not just an estimated number that the local counting officer thinks may turn up to vote. How will the Government ensure that this happens? In the past, problems have been caused by people arriving in the last 30 minutes and not being able to vote. What specific actions will the Government be taking in this referendum to ensure that there are sufficient staff on duty at each ballot station to cope with a last-minute surge of people?

We have all cast a vote many times in the past. Let us think back: is the polling station we normally use adequate if a large number of people come in to vote? How will the Government ensure that polling stations can cope with a larger number of arrivals than normal? I know that you cannot change where the station is, but it may be that, instead of the usual smaller room, you could move to a bigger room in the school or whatever is being used.

What discussions will the Government have with the police about their role in ensuring that the referendum is free and fair? What discussions will the Government have with the police and crime commissioners to ensure a free and fair referendum?

How will the Government address the problem of a very close overall result and the calls for a full national recount that will inevitably follow? There will be local counts with a big win for one side and, frankly, all the people could have packed up and gone home. Is that something in the hands of the chief counting officer, or is there no provision for it?

When is the counting of votes going to take place? I hope the noble Lord will confirm that counting will start as quickly as possible after 10 pm. It is necessary for this to be done expeditiously, with counts starting at the same time across the UK.

Can the Minister explain the thinking of the Government on the regulated period? A 10-week regulated period would overlap with the elections for the Northern Ireland Assembly, the Welsh Assembly and the Scottish Parliament. If a seven-week regulated period was in place then the elections and the referendum would be separate, which would be much clearer for everyone.

How are the Government going to ensure that the more than 2 million British citizens living abroad are able to register and vote?

Those are the points I have at the moment, but I hope that if the Minister responds to those, he will not mind if I put other points to him later. As I have said, I have no issues with the regulations as they stand. My questions arise only from reading the documents and wanting to ensure that we have a proper referendum and that the process does not become the story.

[Lord Hayward (Con)]

May I ask, following on from that question, about the counting of postal votes? I noted that the Minister had a look of horror, concern or surprise—I am not sure which it was—when I came into the Room. He was fairly sure that I would ask one question or another. Under normal circumstances, postal votes are counted over a number of days and, despite the Electoral Commission’s best guidance which is being implemented by most councils, it is sometimes possible to see the results of those postal votes. Given that, in these circumstances, any leak of information will be seriously market sensitive in relation to the value of the pound and other aspects that might impact on the City and the world’s stock markets, could my noble friend say whether postal votes will be counted on the day, thereby minimising the chance of leaks in advance, or, as they normally are in other elections, over a series of days?

[Lord Bridges of Headley]

I thank both noble Lords who have spoken, particularly the noble Lord, Lord Kennedy, who speaks with a lot of experience. I will try to answer his excellent questions. Like him, I wish to see this referendum being conducted properly, fairly and efficiently. I will answer his questions in the spirit in which he asked them.

The noble Lord asked how the Government plan to ensure that counting officers and their staff at polling stations have sufficient resources to conduct the referendum properly, and about what plans we have to impress on chief, regional and local counting officers the importance of delivering a well-run referendum and avoiding past mistakes in elections. Those are fair questions. The Electoral Commission’s planning for the referendum, as I mentioned in my opening remarks, is already well under way; a management structure of groups and the regional counting officers is in place to ensure effective planning. I am sure that the noble Lord, having himself been an electoral commissioner during the 2011 referendum, will be aware of the approach taken by the chief counting officer and her team to ensure that that poll was well-run, and I am sure that she is taking on board and learning from that experience in planning for the poll on 23 June.

A related question was how the Government intend to impress on the chief counting officer the need to use her powers of direction at any point when she might feel confidence in the running of the ballot could be undermined by poor practice by counting officers and their staff. On this point, I am also sure that the chief counting officer and her team at the Electoral Commission will be playing very close attention to the debate and to the remarks that the noble Lord has just made, and will note the legitimate concerns here. This goes without saying, but I will make the obvious point that we are in very close touch with the Electoral Commission on the operations of the poll, and government officials and I will ensure that the noble Lord’s points are flagged up with it directly.

Another related point was about ensuring that ballot papers for every single voter will be printed and available at the polling station and what the Government are doing to ensure that the polling stations are of sufficient size to cope with larger than normal numbers. As the noble Lord will know, the detail of how the polls are run is a matter for the chief counting officer. We are aware that numbers of ballot papers and the logistics of polling stations are among the delivery matters that the Electoral Commission has already considered and planned for with directions and guidance. For example, the chief counting officer has indicated that she will require ballot papers to be printed to cover 110% of the eligible electorate, to ensure that sufficient papers are available, and that contingencies will be in place.

As regards the declaration of the results, the votes will be counted overnight. The conduct rules specify that counting officers must begin counting the votes as soon as practical after polling closes at 10 pm. As well as the overall result of the referendum, which will be decided by a simple majority, separate results will be announced for each voting area and region. Separate results will be declared for each local authority as well as for Scotland, Wales, Northern Ireland and Gibraltar.

[Lord Kennedy of Southwark]

I live in Lewisham, which possibly will vote heavily in favour of staying in the European Union, but other places will not. Although there may be quite a large result either way, when it is all added together there might be only a few thousand votes in it. I remember that the referendum on the Welsh Assembly was very close, and I think it was the last area to declare that narrowly gave a yes vote. I am conscious that if we end up like that, with a few thousand votes in it nationally, we will have people saying, “Hang on, I want a recount”. How will that happen? Can it happen?

--- Later in debate ---

[Lord Bridges of Headley]

I will need to write on the details of that. As for the timing, the counting must begin, as I said, as soon as practical after polling closes. The results will be declared by each local authority. I will respond to the noble Lord in writing on the details.

The noble Lord raised a legitimate question as to whether, with a 10-week regulated period, we might have an overlap of the regulated periods for the referendum and for the elections to the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly. I think he is arguing that if we had a seven-week regulated period, there would be no overlap and a clearer position for everyone. We recognise that some campaigners and political parties will wish to campaign both in the elections to the devolved legislatures and in the referendum. Existing Electoral Commission guidance explains how to split spending limits for elections and referendums. The Electoral Commission has given an undertaking to issue further guidance to explain the impact of the overlapping periods for parties and campaigners who are campaigning in both the EU referendum and the May 2016 elections.

[Lord Kennedy of Southwark]

I am sure the commission will give very good guidance and do it very well, but as his explanation suggests, this is quite complicated. If the periods were split, it would be very different and there would not be these problems. The Minister is absolutely right that those campaigning for elections to all the bodies he has talked about and for the in/out referendum will in many cases be the same people. That is the problem. Maybe it cannot be changed, but there is an issue there and perhaps he could look at that again and talk further to the commission. Its guidance is good, but if this stays as it is, that guidance has to be very clear and precise.

[Lord Bridges of Headley]

I completely accept that point and am happy to raise it will the Electoral Commission again. As I say, I very much hope that the commission will be reading this debate with considerable interest, but I am happy to raise the point.

The noble Lord asked about ensuring that British citizens living abroad are able to register in time to vote in the referendum. As the noble Lord might know, the Government have strengthened and simplified the registration process so more voters can take part in elections by registering online. It now takes less than three minutes, and you can register throughout the year wherever you are. Under IER, there is no longer a general requirement for initial applications to be attested by another British citizen resident abroad, which we believe discouraged many Britons from registering in the first place. We have also extended the electoral timetable to give overseas electors more time to cast their votes. As the noble Lord may also know, the Foreign Office’s consular network supported the Electoral Commission’s overseas voter registration day last month to promote voter registration to British citizens abroad, and I urge overseas voters to register as soon as possible, and by 6 June at the latest, in order to take part in the referendum. I think that that probably addresses the points that the noble Lord raised on overseas voters, but I am happy to go into more detail if he so wishes.

The noble Lord also raised discussions with the police, which is a matter for the chief counting officer to take forward, but another good point worth flagging, and I will do so with the Electoral Commission. Postal votes are not counted before the close of the poll, and will be counted along with all other votes after the polls close.

I commend the regulations.

Motion agreed.