We welcome this Bill and support the introduction of IER. IER will address vulnerabilities in the current electoral regi
Electoral Registration and Administration Bill: Part 1 Committee Stage House of Commons – June 2012 The Electoral Registration and Administration Bill provides for the introduction of individual electoral registration (IER) in Great Britain, and a number of changes relating to electoral administration and the conduct of elections. We welcome this Bill and support the introduction of IER. IER will address vulnerabilities in the current electoral registration process. It is also right that people take responsibility for their own votes. But IER is the biggest change to the electoral registration system since the introduction of the universal franchise in 1928 and therefore needs careful planning and implementation. It needs to be done in a way that puts the voter first. We want to be sure that the system maximises accuracy and completeness of the electoral registers. We provided a briefing on 23 May 2012, for Second Reading of the Bill, which set out our general position in relation to the Bill and the provisions it contains. This briefing sets out the Electoral Commission’s view on key issues arising from Part 1 of the Bill (Individual Electoral Registration in Great Britain) due to be debated at Committee Stage Days 1 and 2, and the first part of Day 3. Clauses and schedules are listed in the same order as they appear on the programme motion. This briefing comments on certain aspects of the Bill, or amendments, which the Commission believes raise significant issues of workability or policy. In some cases we are calling for the Bill to be amended. In others we are asking the Government to clarify its intention. Subject to the response from Government during Committee Stage, we may call for further amendments to the Bill. This briefing does not comment on every clause or amendment tabled, and the absence of comment does not imply that we support it. We will issue a second briefing relating to Part 2 of the Electoral Registration and Administration Bill (Administration and Conduct of Elections etc.) ahead of Day 3 of Committee Stage. For further information, please contact Caroline Bolshaw, Public Affairs Manager on 020 7271 0632 or
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PART 1 - INDIVIDUAL ELECTORAL REGISTRATION IN GREAT BRITAIN
Clause 1 – Individual registration Clause 1 amends the Representation of the People Act 1983 (the 1983 Act) and provides that an Electoral Registration Officer (ERO) must add to the register any individual who makes a valid application under that Act and who appears to be entitled to register. In determining applications for registration, EROs will be required to have regard to any guidance given by the Minister. Such guidance, and the requirement to have regard to it, will cease to have effect after a five year period. The guidance that can be issued by the Minister includes guidance about the process for determining whether the conditions for entitlement to be registered are met, as well as the relative weight to be given to different kinds of evidence; in simple terms, on the basis of what evidence should somebody be added to the register? We understand that these provisions are designed to enable the Minister to issue guidance to EROs during the initial stages of implementation of the new registration process: we agree that there is a need for clear instructions on the detailed process that EROs will be required to follow. However, there is no precedent for the Minister or Secretary of State to exercise such direct control over how EROs discharge their functions. Given the significance of the changes to the registration system, there should be proper scrutiny of this process; one way to achieve this would be to set out the requirements in regulations rather than being solely at the discretion of the Secretary of State. An alternative would be for the Secretary of State to issue directions to EROs (under section 52 of the Representation of the People Act 1983) on a recommendation by the Commission to follow guidance. Although this would not involve Parliamentary scrutiny, it would have the advantage of continuing to apply beyond the initial five year period. The Government should explain to Parliament how it will ensure proper scrutiny of the content of the guidance. This explanation should include whether it believes specifying such guidance in regulations would be appropriate, as well as how guidance will be provided to EROs beyond the five year period.
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Clause 2 – Applications for registration and verification of entitlement etc. Clause 2 provides the Secretary of State with a range of powers to make secondary legislation, which enable the Secretary of State to set out, through regulations, the process by which the electoral register can be amended, or by which applications should be processed. The provisions include the power to set rules on requiring supporting evidence for new applications; the form, content and manner of any applications; and to confer functions on EROs, local authorities, and the Commission. Given the broad range of matters that are to be provided for by secondary legislation, we welcome the Government’s commitment to produce a delegated powers memorandum setting out how the secondary legislation making powers are to be exercised and hope this will be published shortly One specific area of concern the Commission has relates to the power to make regulations requiring a person to provide evidence in support of an application for registration or for alteration of an entry in the register. The evidence that can be required is either of a kind prescribed in secondary legislation or evidence ‘of a kind determined by the Secretary of State’. Those provisions that are made in secondary legislation will be subject to the approval of Parliament. However, no such oversight would be required when the Secretary of State makes a determination about what an ERO can and cannot accept as evidence of identity. Given the importance of this point, we would like to see the Bill amended to ensure that this evidence must be listed in secondary legislation. As previously mentioned, Clause 2 also enables the Secretary of State to make regulations about form design and to confer this function on the Commission. We welcome our proposed role in this area and look forward to being consulted on the detail in secondary legislation. Comments on amendments: Amendment 1 requires an applicant to state whether they are also entitled to be registered in a different local authority area. It is our understanding that a similar requirement will be made through secondary legislation. The Government should confirm that this will be the case. The amendment does highlight one concern we have with the current proposals; that there is no way for EROs from different local authorities to identify duplicate entries by cross-checking their registers unless the applicant informs one of them of their dual registration. We will consider this issue further in our Part 2 briefing under Clause 21 Repeal of powers to establish co-ordinated on-line record of electors.
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Schedule 2 – Sharing and checking information etc. In 2011 a series of data-matching pilot schemes were undertaken by 22 local authorities in England and Scotland to explore the extent to which the use of national public databases can help EROs improve the accuracy and completeness of their electoral registers. This Schedule makes further provision for secondary legislation to allow for the sharing and checking of information necessary to ensure an accurate and complete register. In our view the Government’s recent assertion that the 2011 data-matching pilot schemes suggested that 66% of entries on the register could be confirmed and added to the new register without the need for individuals to make an individual application is premature. This was not the finding from our evaluation and the use of data matching to confirm the identity of individuals has not been subject to thorough evaluation and testing. The Commission is evaluating the next round of pilots and we expect to make an assessment of the role of ‘confirmation’ in maintaining the register under IER in early 2013. If, following that evaluation, the ‘confirmation’ process is found to be an effective way of maintaining the register, there may be merit in using the same match-process during each annual canvass. Schedule 5 of the Bill (transitional provisions) currently provides for the Minister to make an order requiring an ERO to take steps to check or confirm that a person who is on the register is entitled to remain registered. However, the ‘confirmation’ regulations currently appear in the Schedule that deals only with transitional provisions. The Government should clarify whether there are sufficient provisions in this Bill to allow confirmation of existing entries to be used after 2014 if an assessment of the process indicates that it has been successful. We also note that the impact assessment for the Bill does not consider what would happen if fewer people registered under the new system, stating that this is unlikely because of the expected high level of confirmed entries. The Government should explain how it plans to mitigate the effect on the wider uses of the register if confirmation cannot be used as widely as predicted and there is a resulting drop in the completeness of the register.
Clause 4 – Annual canvass We support Clause 4, which removes 15 October as the qualifying date for an annual canvass, thereby providing greater flexibility over the timing of future canvasses. We have previously highlighted through our research that the completeness of the registers generally declines after the registers are published on 1 December. Removing 15 October as the qualifying date opens up the possibility of moving the canvass closer to polling day, ensuring that the registers used for elections are more up-to-date. 4
It will, however, be essential to ensure that this added flexibility does not result in inconsistent practice across Great Britain. Consistent timing of canvass activity would facilitate Commission-led public awareness activity to help ensure that electors understand what is required of them and when. We would welcome a statement from the Government on whether it plans to coordinate the timing of canvass activity across Great Britain in future years.
Clause 6 – Power to amend or abolish the annual canvass Clause 7 – Consulting Electoral Commission about proposals under section 6 Clause 8 – Piloting of changes to the annual canvass Clause 9 – Piloting registration provisions These clauses give the Secretary of State, following consultation with the Commission, power to amend or abolish the annual canvass of electors; they also allow for the piloting of such changes. We agree that it is sensible to include these provisions in this Bill to allow the findings from pilots and the early years of IER to inform the future role of the canvass. The Government has already made changes to this part of the legislation to reflect comments made by the Commission during pre-legislative scrutiny, and we are broadly content with our role in this area. However, clause 7(6) states that we would not be asked to report in the event of a recommendation to reinstate the duty to conduct a canvass; we understand that this is because these provisions may be required at short notice and so consultation may not be feasible. We believe that the Commission should be consulted on any proposal to reinstate the annual canvass in the same way as we are currently required to be consulted on any proposal to amend or abolish the canvass. With respect to the issue of timing, we have often been required to respond to consultations from the Cabinet Office in a very limited time-frame and we do not believe that a requirement to consult us would delay the process unduly. More importantly, we believe that it is essential to ensure that there is a mechanism for external scrutiny of any step that is to be taken within a short timeframe. We would therefore like to see the parts of Clause 7(6) from ‘unless the instrument contains…’ to the end of the clause removed from the Bill to ensure that we would be consulted, and our response presented to Parliament, in the event of a proposal to reinstate the annual canvass. We understand that the Piloting registration provisions in Clause 9 are drafted to allow for flexibility and contingency in the way that IER is implemented. We agree that this is prudent, but it is nevertheless essential that the Government 5
publishes a detailed implementation plan as soon as possible to show what needs to be done to deliver the change. We remain concerned that the Government has not yet been able to set out for EROs, the Commission, political parties and others involved in the process what needs to be done to deliver the change. We will scrutinise this plan and advise on its feasibility. While we also support the contingency provided by the piloting registration provisions but the Government should confirm that all registers used for the same poll will be constructed on the same basis.
Schedule 3 – Civil penalty Schedule 3 provides for the application of civil penalties for failing to respond to an invitation by an ERO to register. An ERO’s overriding priority must be to achieve the registration of electors, however, our view is that civil penalties should be used to encourage registration only as a last resort, in cases where the individual has been particularly obstructive or uncooperative. There is of course a risk that some individuals may choose to pay the fine in order to avoid being registered; nonetheless, we think that the threat of a civil penalty should have the overall effect of encouraging people to register. Much of the detail of how civil penalties will operate will be set out in secondary legislation. The Commission will comment further on the proposed system once this detail is known.
Schedule 4 – Amendments to do with Part 1 Schedule 4 makes necessary amendments to existing legislation for the purposes of Part 1 of the Bill. We are, however, concerned that the Bill proposes to amend the existing duty at section 9A of the 1983 Act (paragraph 6 of the Schedule, read together with paragraph 5). Currently, section 9A(1) requires an ERO to take ‘all steps that are necessary for the purpose of complying with his duty to maintain the register under section 9’. Section 9A(2) contains a list of non-exhaustive steps that include making, on one or more occasions, house to house enquiries under section 10(5) of the 1983 Act. This duty has been extremely important as a means of ensuring that EROs do all that is necessary for the purpose of improving the accuracy and completeness of the register, including conducting house to house enquiries where other steps have not yielded the necessary information. Our understanding is that this is intended as a technical amendment. However, the proposed amendment is confusing and has the potential to dilute the effect of the existing duty. We see no good reason to reduce this duty, particularly at a time when the accuracy and completeness of the registers will be critical. We recommend that the duty should remain as it is. 6
Schedule 5 – Transitional Provisions Schedule 5 explains that there will be a ‘commencement date’ after which the IER provisions will apply and sets out how the transition to IER will be achieved. This includes how new applications and absent voters will be treated after the commencement date, and allows for data-matching to be used to confirm entries on the register, ahead of people being invited to register under IER. It does not, however, specify what that commencement date will be. We believe the commencement date should be 1 July 2014. We recommend this date because it is important that the gap between the end of the canvass on 1 April 2014 and the initial write-out inviting people to register under IER (which will immediately follow the commencement date) should be as short as possible. This will minimise inaccuracies on the register due to home movement and therefore the number of people who cannot be asked to register under IER because EROs do not have the correct address. We believe that, with good preparation and planning, a 1 July 2014 commencement date is achievable and would welcome assurances from the Government that this is their intention. We would welcome clarification from the Government on when they expect to reach a decision on this issue.
Issues arising from Second Reading of the ERA Bill A number of issues were raised by Members during Second Reading of the ERA Bill that are not currently included in the Bill before Parliament. We thought it would be useful to set out the Commission’s views on those key issues that relate to Part 1 of the Bill.
Edited register We continue to support the abolition of the edited register on the grounds that the electoral register should be for electoral and other civic purposes, and not be made available for direct marketing purposes. Retaining the edited register at a time when individuals will be required to provide additional personal information to support the introduction of IER may raise public concerns about how this information will be used. We will test public concerns on this issue as we develop the forms to support IER. We will cover those that relate to Part 2, such as voter identification at polling stations and queues at polling stations at close of poll, in our second briefing paper.
Queues at Close of Poll We support New Clause 4, which would allow for ballot papers to be issued to any registered voter who is in the polling station or in a queue outside the polling station at 10pm, in order that they may then cast their vote, and will brief in more detail on this amendment next week. 7
