Regional Assemblies (Preparations) Bill

Public Bill Committee, 10 December 2002.

Standing Committee A

Clause 7 - Encouraging Voting

Philip Hammond (Conservative, Runnymede and Weybridge)

I beg to move amendment No. 7, in

clause 7, page 3, line 38, at end add

''provided that the Electoral Commission shall certify that anything done under this section is not likely, in the Commission's judgment, disproportionately to benefit one of the possible outcomes of the referendum.''.

The clause will impose on the Electoral Commission a duty to encourage voting. There are obviously good reasons why one would want the commission to do that. Committee members will have received a briefing from the Royal National Institute of the Blind and I shall revert to that in a moment with a couple of specific questions. I am sure that the Minister has had the brief, so he will have specific answers to the RNIB's questions.

The thoughts that lay behind amendment No. 7 were formulated on reading the brief. The RNIB talks about the need for simple messages in short sentences and ordinary words to convey information about a referendum, for example, to people with learning difficulties. That is fine, but it is important that in promoting or encouraging voting, the Electoral Commission is extremely careful that what it does is impartial in relation to the outcome of a referendum. Having met the chief commissioner, I am in no doubt that the commission would intend to ensure that what it did was entirely impartial and did not have any impact on the outcome that disproportionately benefited either side. However, that could be difficult to achieve.

Let us discuss the north-east. It has been used as an example and I think it is a commonly held view in the Committee that the north-east is likely to be one of the first areas that the Minister wishes to test. We have talked about the urban-rural split and the fact that the large proportion of the population lives in urban areas. I suspect that many people would not regard it as highly contentious that there is likely to be a larger level of support for an elected regional assembly in the metropolitan areas of the north-east, than there would be in the rural areas, where the changes to local government arrangements will come into play. Therefore, it would be important that anything that the Electoral Commission did to encourage voting was not targeted in urban areas, but across the whole of the region equally, and in a way that did not discriminate.

If the commission were minded to use electronic means to communicate with potential voters, it would be important to establish that those who were electronically enabled were not disproportionately

likely to be of one persuasion or the other. Hon. Members could think of many examples of groups of people who might be more likely to be inclined to vote yes or no—polling evidence might demonstrate that. It is important that the commission takes that into account. I hope that it is not contentious that encouraging voting should be an entirely neutral exercise, and it is becoming more difficult to ensure that such exercises are neutral. Electronic media are a good example of a medium where access is clearly not evenly distributed among the population. Younger people have more access than older people, wealthier people more access than poorer people.

Jim Knight (Labour, South Dorset)

I agree that encouraging voting should be a neutral exercise, but I question whether it would be neutral if the hon. Gentleman had his way with thresholds. I thought that we had already discussed that in that case, encouraging voting might not be neutral. Is this one of those matters over which the hon. Gentleman is being contradictory?

Philip Hammond (Conservative, Runnymede and Weybridge)

No. I listened carefully to the views on thresholds expressed in Committee and, as the hon. Gentleman will see in due course, we have tabled new amendments, and are about to table more, that would incorporate the concept of thresholds but in a way that would not create a perverse incentive for the no campaign to encourage people not to vote. We shall hear more on that in due course, but I suspect that you do not want me to digress into that now, Mr. Benton.

Amendment No. 7 would place on the Electoral Commission a duty to ensure that, in encouraging voting, it does not disproportionately encourage voting among no voters or yes voters in the referendum. I shall deal with the RNIB's points in the stand part debate, if I may, and now I wait to hear what the Under-Secretary has to say on this uncontroversial proposal.

Chris Leslie (Labour, Shipley)

While the amendment may be uncontroversial in the view of the hon. Member for Runnymede and Weybridge (Mr. Hammond), I fear that it is also flawed in various ways. I shall detail those, hoping that the Committee will resist the amendment.

I shall briefly touch on some of the points that the hon. Gentleman raised, in particular the briefing from the RNIB. It rightly expects and hopes that simple messages in any encouraging material for voters will be clear and presented in a manner that is easily accessed by people with learning disabilities or visual impairments. I understand that the commission has said that it will produce materials for those who may be hard to reach through traditional dissemination methods. The director of media and public affairs at the commission has confirmed that. That point was well made, has been heard and will be responded to.

However, amendment No. 7 is unnecessary and potentially undesirable. The Electoral Commission is an independent body, established under an Act of Parliament that ensures that the commission takes a fair and reasonable approach in all its statutory duties. It should not be seen to favour one outcome of a

referendum over another. We consider that, even without this amendment, the commission will normally have a public law duty to act in a reasonable and balanced way when carrying out its duties under clause 7. It could be challenged and subject to a judicial review if it acted in a biased way.

The amendment would open the door to a number of undesirable factors. I shall pick out a few words from it. It asks that information is not likely ''disproportionately to benefit'' one possible outcome of the referendum. One interpretation of that could be that if the commission had information that one result of a referendum was more likely than another, the amendment might force or encourage it actively to persuade people to vote the other way to balance that out. To encourage a proportionate outcome, the amendment would oblige the commission to aid the perceived underdog. That is one interpretation of its drafting that reveals a significant hole. Clause 7 is about influencing and encouraging people to vote. It is not about the decision that they make.

Philip Hammond (Conservative, Runnymede and Weybridge)

I agree, but it is a question of which people we encourage. There may be no discernible pattern to the yes/no inclination in the population. However, polling evidence may suggest that older people are strongly against and younger people are strongly in favour. I want to tackle that sort of situation.

Chris Leslie (Labour, Shipley)

It would worry me if the hon. Gentleman were, by way of the amendment, deliberately trying to encourage the Electoral Commission to balance what it perceives to be the view of the population by encouraging either those who were or those who were not in favour of a question to vote. I am concerned that the phrase ''disproportionately to benefit'' would create a duty on the commission to balance an outcome.

Matthew Green (Liberal Democrat, Ludlow)

May I add to that? The Conservative spokesman used the example of voters in rural areas being less keen on regional assemblies than urban voters. In elections, voter turnout in rural areas tends to be far in excess of that in urban areas. Is it not the Conservatives' fear that encouraging voting will mean that those in urban areas will turn out to vote yes in a referendum?

Chris Leslie (Labour, Shipley)

Who can say what is in the minds of Conservative Members? I am obviously disposed to think of them in a favourable way.

Desmond Swayne (Conservative, New Forest West)

Is the Minister's resistance to the amendment based on his concern about its drafting, or on its principle, which is that the Electoral Commission should be required to act in all cases dispassionately?

Chris Leslie (Labour, Shipley)

The hon. Gentleman's early morning swim in the Serpentine may have clogged his ears, because he obviously did not hear my earlier comment that I do not believe that the amendment would have the necessary effect of making an otherwise biased commission act properly. The Electoral Commission is already under a duty to be impartial so the amendment

is not necessary. I am also detailing why the amendment is flawed in a number of other respects.

Gary Streeter (Conservative, South West Devon)

Will the hon. Gentleman give way?

Chris Leslie (Labour, Shipley)

I should like to comment on the word ''certify'', but shall give way before I do so.

Gary Streeter (Conservative, South West Devon)

I shall make two brief points. The Under-Secretary will not be aware that during the period when I was first elected, between 1992 and 1997, on many Standing Committee many of his colleagues—then sitting in opposition—were constantly urging the Government to accept amendments that they thought clarified wording. Suddenly, his party seems to have changed its mind. The Minister for Local Government and the Regions will, however, remember because he was part of that process. I shall wait to make my second point on another intervention.

Chris Leslie (Labour, Shipley)

I can barely wait for the next intervention.

Gary Streeter (Conservative, South West Devon)

I thought that I was taking up too much time.

Let me give an example of exactly what the Electoral Commission might do that could be impartial but would reveal a lack of political experience. In a region, it might ask a county council to include, when it sends out council tax bills, a leaflet from the commission explaining what will happen and urging people to vote. As several councils will be being—shall we say—reshaped, the commission might not be aware that those councils could in the same envelope include their own material about why the referendum should be resisted at all costs. If I wanted a referendum to be successful in that region, I would be unhappy if the Electoral Commission were to make its information available in that way. Might not the amendment prevent that from happening?

Chris Leslie (Labour, Shipley)

I am not sure that it would. The amendment would impose on the Electoral Commission a duty that I believe already exists under the Political Parties, Elections and Referendums Act 2000. I think that the hon. Gentleman's point is that that duty needs to be extended to councils and others who are involved. The amendment mentions ''anything'' done under the section. One interpretation of that could be that the commission has to certify not only its own materials, but all materials that have the potential to influence people to vote. That may be a flaw in the amendment. It would not be practical for the commission to certify all encouraging materials.

Philip Hammond (Conservative, Runnymede and Weybridge)

That is the second rather strange interpretation that the Under-Secretary has put on the amendment. Will he tell us how he arrived at the conclusion that the amendment, which requires the Electoral Commission to certify something done under a section that starts:

''The Electoral Commission may do anything they think necessary'',

could possibly be interpreted as referring to material provided or put out by other parties?

Chris Leslie (Labour, Shipley)

I received advice that there is an ambiguity in the drafting of the amendment. Indeed, that is not the only ambiguity. There is the matter of certification. It is difficult to see how the commission could produce such a certificate without knowing approximately how many people might vote one way or the other if they were to read encouraging materials.

There are a number of flaws in the amendment, but my principal objection is that it is unnecessary. The Electoral Commission is establishing a strong and justified reputation for being impartial, fair and independent. The amendment is superfluous, given the clauses in the Bill. I ask the Committee to resist the amendment.

Philip Hammond (Conservative, Runnymede and Weybridge)

I am perfectly prepared to address the Under-Secretary's contention that the amendment is superfluous, but to claim that the amendment is flawed and then to shelter behind the claim that he is acting on advice that he received, rather than explaining why it is flawed, is unsatisfactory. The amendment merely requires the Electoral Commission to certify that ''in the Commission's judgment'' its actions do not disproportionately benefit one of the possible outcomes. That is not impossible. I hope that the commission exercises careful judgment in relation to anything that it does; if so, it will be in a position to certify what the amendment requires.

Without referring the Committee to any particular provision in the Political Parties, Elections and Referendums Act 2000, the Under-Secretary said that the duty ''already exists''. I would like to know precisely what the Under-Secretary had in mind so that I can judge whether that is so.

Nobody in the Room doubts that the Electoral Commission will go about its business without any intention of bias. The amendment does not address intentional bias; it addresses the unintended consequences of addressing a group or groups—perhaps groups with particular disabilities, for example—that may be more or less inclined to vote one way or the other. I have no reason to suppose that the majority of partially sighted people in any region will be more or less disposed to one side of the argument. However, if there were a group among whom it was obvious, from the available evidence, that there was a strong feeling one way or the other, the Electoral Commission would have to approach with care the way in which it presented or reinterpreted the issues to members of that group.

The Under-Secretary did not touch at all on communications media. As Members of Parliament, we all have to wrestle with the uneven distribution of access to electronic communications media. When a constituent sends one of us an e-mail, he often expects to get an answer pretty much straight away because he has communicated in that way. Equally, given that he has access to electronic mail, he is unlikely to be among the most needy and disadvantaged of our constituents.

I do not know what other hon. Members do, but I always print out my e-mails from constituents, put them in the pile with the faxes and letters and treat them in exact rotation. To do otherwise would be to

discriminate unfairly and unreasonably against constituents who do not have access to electronic communications media. That is an important point when we consider how to encourage voting, as we shall see when we reach clause 8, which deals with the dissemination of information. I should have liked to hear Government support for sending a clear signal to the Electoral Commission that it must, in going about the duty that the clause imposes on it, exercise extreme caution to ensure that the commission does so in a way that is clearly balanced, does not introduce any unintended bias and is beyond reproach, thus reinforcing the credibility and reputation of the commission, not inadvertently undermining it.

I take on board the Under-Secretary's interpretation of the impact of amendment No. 7, although I do not agree with everything that he said. It seems that he has no objection to the principle of the amendment—that actions taken by the Electoral Commission should not bias the outcome, or be seen to bias the outcome, in any way—but he does not think that the amendment would achieve that and that it is therefore unnecessary. We shall go back to the drawing board to try to draft an amendment that attempts to achieve the same objective, but without introducing what, to my surprise, the Under-Secretary seems to believe is controversial content. I hope that the underlying principle of the amendment is in no way controversial and that we will receive a welcome from the Government if we table an alternative at a later stage. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Matthew Green (Liberal Democrat, Ludlow)

I beg to move amendment No. 27, in

clause 7, page 3, line 38, at end add

'subject to voters being given the option of voting at polling stations'.

The amendment has one explicit purpose; to prevent all-postal ballots for referendums. Various experiments have taken place with all-postal ballots, but it remains unclear how effective they are at stopping fraud and vote rigging. Even under the old, slightly amended, postal vote scheme, which did not use all-postal ballots, there have been in recent years serious allegations of vote rigging regarding local government elections in Pendle and in Birmingham. All-postal ballots are a relatively new idea that is still being trailed, and it would be inappropriate to use them in what it is hoped will be a large-scale election in a regional referendum. Their purpose clearly is to increase voter turnout, which is why Ministers have used that argument to support all-postal ballots. It is questionable, however, whether all-postal ballots will increase voter turnout.

Ways of making voting easier are window-dressing in terms of the overall problem of whether the public feel that they want actively to be involved in the political process. Supermarket voting and electronic voting are simply devices that do not address the public's disconnection from politics. Postal ballots discourage active participation by the public in the political process outside of voting because people can

vote over a period rather than on one day, acting against conventional political campaigns in which people on the ground knock on doors and talk to voters.

Many people believe that the disconnection between people and the political process is largely because the amount of personal contact in politics is declining. Politicians are only seen on television or in the newspapers, and they are not seen on the doorsteps talking to voters. All-postal ballots will further discourage politicians and their supporters from getting out and doing the hard work on the doorstep.

Kevan Jones (Labour, North Durham)

I am trying to follow the logic of the hon. Gentleman's argument. Can he explain how postal balloting discourages politicians from knocking on doors to get the vote out? What is the difference?

Matthew Green: Certainly. People can vote over a period of time in postal ballots because they have a window of opportunity, which is greater than a day, in which to post their ballots. As the final date approaches, politicians who knock on doors may find that lots of people say, ''I have already voted.''

Adrian Flook (Conservative, Taunton)

Will the hon. Gentleman clarify whether he is speaking for the Liberal Democrats or whether that is his personal view? Closing down the window in the way he has described will stop the Liberals from putting out their scurrilous, last-moment leaflets.

Matthew Green (Liberal Democrat, Ludlow)

In the 1980s, the Conservative party had the reputation for being the most competent campaigning party. That reputation has deserted the party, and it would probably come bottom of the table in its ability to campaign on a local level. To answer the hon. Gentleman's question, I am speaking on behalf of the Liberal Democrats. We are concerned about all-postal ballots for a variety of reasons. [Interruption.] Well, I would not want to be a Conservative given the state of the polls at the moment; it does not matter to the Conservatives what kind of ballot is used, particularly in by-elections.

We are looking at whether widespread vote rigging, which would clearly be easier in a postal ballot, could take place, and whether the evidence from all-postal ballots has been looked at in sufficient detail to make a decision. All-postal ballots militate against active participation in the political process because they lead to more armchair politics.

Gary Streeter (Conservative, South West Devon)

Of course, we are all in favour of encouraging political participation and bringing politicians closer to the people. Does the hon. Gentleman think that the regional list system employed in the last European election has achieved that aim?

Matthew Green (Liberal Democrat, Ludlow)

The regional list system has not achieved that aim because it was a closed list. It did not give people the opportunity to vote for the person whom they wanted as well as the party. There are other means, such as an open-list system or the single transferable vote. I shall not bore the Committee with

an explanation of the different voting systems, but there are ways of allowing people to vote for the candidate, as well as the party, they want in a list system. It just happens that when the list was chosen, the Minister then responsible for the matter—the current Foreign Secretary—chose the system that was most likely to frustrate voters' choice of which candidate they wanted.

Joe Benton (Labour, Bootle)

Order. We are moving slightly away from the amendment; perhaps the hon. Gentleman would return to it.

Matthew Green (Liberal Democrat, Ludlow)

I am sorry, Mr. Benton. I shall do so. I had just about concluded my comments and I look forward to the Under-Secretary's response.

Philip Hammond (Conservative, Runnymede and Weybridge)

The hon. Gentleman managed to introduce a reference to single transferable voting early in our deliberations. I usually look for that as a milestone in the Liberal Democrats' progress in a Committee. If they are true to form and with the hon. Gentleman having got that in, we are coming close to the time when neither Liberal Democrat Member will bother to turn up.

I did not follow the hon. Gentleman's arguments. The only advantage for political activists in the Liberal Democrat party of not having all-postal ballots and insisting on the ability to go to a polling station is that it provides a means of more contact with voters and the opportunity to influence or intimidate people as they approach the polling station. I am sure that no hon. Member of this House would ever condone such behaviour.

We agree that there must be a polling station option and that there must be a postal option. I am sure that the Under-Secretary will confirm that the Government intend to allow voting in person and by post, but Conservative Members would have reservations about going beyond those two options.

I presume that when tabling the amendment the hon. Member for Ludlow (Matthew Green) interpreted the powers being given to the Electoral Commission widely; at least, I hope he did. I did not interpret the words ''may do anything they think necessary'' literally, because that could include determining the process of the ballot. Does the hon. Gentleman believe that doing anything it thinks necessary or expedient for the purpose of encouraging voting could include offering Marks and Spencer vouchers to anyone turning up at a polling station, or introducing the death penalty for those who do not turn up and vote? Clearly, the intention of the clause is not to give the Electoral Commission total, unfettered power to ensure the maximum turnout. At least, I hope that that is not the intention because it would be very worrying.

Given the Under-Secretary's precise attention to possible misinterpretation in relation to the previous amendment, the hon. Gentleman highlighted the need to tighten the clause to make it absolutely clear that in the run-up to a referendum the Electoral Commission may do anything it thinks necessary for the purpose of encouraging voting; in other words, to encourage

awareness of the referendum and its surrounding processes. Having considered the Liberal Democrat amendment and the wording of the clause, there seems to be a need to tighten it up to make it clear that it does not give the Electoral Commission carte blanche to dictate the details of how the election will be conducted on the day. I look forward to hearing from the Under-Secretary that that is not the intention in the clause and that questions about postal ballots and the conduct of the referendum will be determined by Ministers, hopefully on the advice of the Electoral Commission.

Desmond Swayne (Conservative, New Forest West)

On a point of order, Mr. Benton. The debate on the second amendment seems to be opening up to cover the purpose of the clause. I seek your guidance on whether you are minded to allow a separate stand part debate or whether those of us who have reservations about the nature of the clause should get in now.

Joe Benton (Labour, Bootle)

That depends on which way the debate goes. If I consider that the subject has had sufficient discussion in the normal process of the debate, I will put the stand part question when we come to it. If I consider that clause stand part has been insufficiently discussed, I will act accordingly. It is entirely up to members of the Committee.

Kevan Jones (Labour, North Durham)

I should like to argue against the amendment. It is ironic that the Liberal Democrats are against postal voting. I accept that the experiments so far have been limited but, according to the Electoral Commission's evaluation, it is clear that the experiments have been successful in increasing turnout. I understand that the average has increased from 32 per cent. to more than 47 per cent.

A pilot was conducted in 2002 in Gateshead, in the north-east of England. The average turnout rate rose from less than 30 per cent. to 57.4 per cent. Of those who voted, 96.1 per cent. did so by post. I accept the point made by the hon. Member for Ludlow about giving people options. In those elections, 21 delivery points were provided for those who wished to deliver their ballot papers; fewer than 4 per cent. chose to do that. We still need to give people such options. However, the Liberal Democrats are coming at this from a party political point of view, because when large numbers of people participate in local elections or referendums, it is clear that they do not favour the Liberal Democrats.

Matthew Green (Liberal Democrat, Ludlow)

What was the turnout in the hon. Gentleman's election, bearing in mind that it was just under 70 per cent. in Ludlow?

Kevan Jones (Labour, North Durham)

The good burghers of North Durham returned me on a nearly 58 per cent. turnout, and Chester-le-Street and Derwentside councils are trying for all-postal balloting pilots on the basis that they will increase participation. I expected that the Liberal Democrats, like all of us, would support moves to increase the number of people who participate in the democratic process.

On fraud, I refer again to the Electoral Commission's evaluation report, which stated:

''The commission found no evidence of fraud, although there were some significant public anxieties about the potential for fraud.''

I resist the amendment. Anything that increases turnout at referendums should be supported, including postal balloting. However, I also support giving people the option, as was provided in some of the pilots, to hand in their ballot, although it is clear from the evidence that most people want to vote by post.

Desmond Swayne (Conservative, New Forest West)

I was going to spare no vitriol on what I regard as a monstrous clause and had much lined up to say about it. I am afraid to say that my hon. Friend the Member for Runnymede and Weybridge has spoiled a good story with facts. I planned to go on at some length about whether any self-respecting legislature would grant anyone the power to do ''anything'', as the Bill does. Unfortunately, the more measured comments of my hon. Friend have spoiled that.

I question the legitimacy of the clause. Previously, we established an agreement across the Chamber that given that referendums—

Joe Benton (Labour, Bootle)

Order. I am reluctant to intervene but, referring to the hon. Gentleman's point of order, am I to assume that he will now speak about the clause? I ask him to confine his remarks to the amendment.

Desmond Swayne (Conservative, New Forest West)

Then I shall not speak.

Chris Leslie (Labour, Shipley)

This has been a very illuminating debate. I was briefed to discuss deficiencies in the amendment, as is my style, but the hon. Member for Ludlow helped us all out by saying that it was not just that he wanted to encourage the option of having polling stations open if there were an all-postal ballot, but that he was actually opposed to all-postal ballots. That is the policy of the Liberal Democrats, and was an extremely helpful statement on behalf of its official spokesman.

I am still reeling with incredulity that that is official policy. Surely if the Liberal Democrats stand for anything—I am not sure that they do—it is precisely what it says on the tin, namely for democracy to be as widespread as possible, with as much participation as possible. I thought that the whole purpose of the Liberal Democrat party was to ensure that more people had involvement in the democratic process. The hon. Member for Ludlow has negated the whole purpose of his political activity and said he is against all-postal voting. I find that extremely disappointing given that, surely, all reasonable people want as many people as possible to turn out and vote, whether by post, in person or through any other way of engaging in the democratic process. That is the ideal that should be pursued, so I am very disappointed with the amendment.

Lawrie Quinn (Labour, Scarborough and Whitby)

Perhaps the moment has gone, but does my hon. Friend the Under-Secretary think that this is now the definition of what is meant by liberal democracy?

Chris Leslie (Labour, Shipley)

That is precisely the point, and I think that the hon. Member for Ludlow has some explaining to do, not least to the leader of his own party. I am sure that he will haul him into the Liberal Democrat

shadow Cabinet room—[Hon. Members: ''The bar!''] I shall not respond to that.

Gary Streeter (Conservative, South West Devon)

Does not the Under-Secretary agree that if we moved to all-postal ballots, it would be a sad loss to politics not to have those eve-of-poll leaflets with the graph on the back saying that it is a two-horse race and only the Liberals can win this seat?

Chris Leslie (Labour, Shipley)

I should not want to rule out the option of the hon. Member for Ludlow producing such a leaflet in future, should he so require. I do not want to close the door to that.

I believe that encouraging high turnouts in referendums and elections is an important principle, and that is what the clause seeks to do. I can confirm that, of course, there will be the option for people to hand in their ballot papers at town halls, but that should not require the mass provision of the existing range of polling stations.

Philip Hammond (Conservative, Runnymede and Weybridge)

The Under-Secretary just confirmed that there will be the option to hand in ballot papers at town halls. Will he clarify whether he is now saying that it is the Government's clear intention to have all-postal ballots, with the option of handing in a ballot paper, or whether that was just a slip of the tongue?

Chris Leslie (Labour, Shipley)

I am grateful to the hon. Gentleman for helping to clarify the point. If all-postal ballots were an option, there obviously would still be the choice, as in the pilot exercises, to hand in ballot papers at town halls. My worry is that if polling stations had to be kept open as well as having an all-postal ballot—should that circumstance arise—it would not only be extremely costly and bureaucratic but would lead to much confusion for voters, who might feel that, having posted their ballot, they also had the right to turn up in person and vote at the polling station. We must ensure that we keep the electoral system as simple and clear as possible and avoid confusion at all times.

Lawrie Quinn (Labour, Scarborough and Whitby)

Now that we have established this Liberal Democrat policy of not wanting postal voting at all, can my hon. Friend advise the Committee what the situation would be for someone who had to work or was ill? We might see a long trail of invalids being taken from their beds; obviously Liberal Democrat voters, which might be why they took to their beds in the first place. What would be the consequences for democracy if people were not allowed to vote because of their life circumstances? Would that not be an illiberal form of democracy?

Chris Leslie (Labour, Shipley)

Quite. My hon. Friend has highlighted a very worrying point. Thank goodness that the hon. Member for Kingston and Surbiton (Mr. Davey) has turned up in Committee to take charge and help out the hon. Member for Ludlow, who is about to explain his policy statement on behalf of his party.

Matthew Green (Liberal Democrat, Ludlow)

The record will make it clear that we are opposed to all-postal ballots, but not postal voting in the normal sense. We are against everyone being given a postal ballot paper. Can the Under-Secretary bring himself to deal with that point? The

all-postal ballot has been introduced to increase voter turnout by making it easier for the voter to vote. Does he think that it is a panacea, which will result in high turnouts for ever, or is it a one-off after which we shall see declining turnouts again?

Chris Leslie (Labour, Shipley)

The hon. Gentleman has confirmed that he is opposed to all-postal ballots, which is an important clarification. One option for encouraging voting is all-postal balloting arrangements for referendums or other forms of election. It is an option, but it should not be introduced in all cases. Incidentally, I can confirm that the decision is not the Electoral Commission's to take; it would take the form of an order, which would be subject to parliamentary approval.

It is important to consider the issues surrounding ease of access to the democratic system, such as making it easier and more convenient to vote for not only those who are perhaps inhibited from physically attending a polling station but those who have to work or who have other obstacles to their attending a polling station at a particular time. Convenience is an important issue in the democratic process and I am astonished that the Liberal Democrats should set their faces against it.

The evidence is far from conclusive on whether all-postal ballots are more likely to lead to fraud. The Liberal Democrat party has jumped to a conclusion when perfectly decent safeguards, which have worked in both those all-postal ballots that have taken place and other elections, are in place to protect the veracity and validity of the democratic process.

Philip Hammond (Conservative, Runnymede and Weybridge)

I appreciate that the Under-Secretary did not want to pass up the chance to analyse the hon. Member for Ludlow's remarks in detail. In addressing them, however, he has, perhaps inadvertently, given credence to the idea that clause 7 is about the arrangements for a ballot. If my interpretation is correct, can he place on the record that clause 7 is intended to cover the period running up to a referendum and not the arrangements for a ballot?

Chris Leslie (Labour, Shipley)

I can confirm that clause 7 is about the Electoral Commission's role in encouraging voting. The amendment seeks to make that contingent on the option of voting at polling stations being widespread, which explains the nature of the debate.

Edward Davey (Liberal Democrat, Kingston and Surbiton)

I am grateful to the Under-Secretary for giving way, particularly because I was not here at the start of the debate, which means that he is being generous. He believes that all-postal ballots will not be subject to greater fraud. In my constituency, however, there are many multiple-occupancy houses in which there is one post box for all residents. The possibility of fraud in those sorts of communities is inevitably greater if people do not go to their local polling stations. Does that not concern him? Does he have no worries whatsoever? If he had no such worries, it would concern me.

Chris Leslie (Labour, Shipley)

I thought that the Liberals were not opposed to postal ballot arrangements in some circumstances. The hon. Gentleman says that if postal votes go to multiple-occupancy houses that

could lead to fraudulent situations, but that is covered by an Act, and a criminal offence is committed if people tamper with ballots. The criminal law is available for enforcement purposes to protect against fraud taking place.

Matthew Green (Liberal Democrat, Ludlow)

There is a considerable distinction between a situation in which a person requests a postal ballot, and therefore knows that it will arrive, and that in which a house in multiple occupancy receives a whole set of postal ballots on the same day. Some of the occupants may be out of the country for months, so other people in the same household could use their ballot papers. It was very much along those lines that accusations of fraud were made in the two places that I mentioned.

Chris Leslie (Labour, Shipley)

This is a difficult argument for Liberal Democrat Members to continue. They have sought to undermine not only the principle of all-postal ballots, but of particular postal ballots, by suggesting that they would make it easier for people fraudulently to affect the outcome of an election. I cannot see why such fraud would not also be possible following receipt of notice of poll cards through the doors of houses in multiple occupation, whereby, on his logic, people could impersonate recipients of those cards. We have to highlight that through provisions that make such impersonation a criminal offence.

Philip Hammond (Conservative, Runnymede and Weybridge)

It is not my job to feed the Under-Secretary with ammunition, but I should point out that when an elector completes a postal ballot he also completes a declaration—which is presumably kept on file and will be a written record of his misdeeds if fraud is committed—whereas when he goes into a polling station and personates another voter, he leaves no trail of evidence. That thoroughly undermines the Liberal Democrat argument.

If, as the Under-Secretary suggests, the clause is about the period running up to the election and is not intended to give the Electoral Commission total carte blanche to do anything—including to interfere with arrangements on polling day—does he agree that its language needs tightening? Will he give Committee members an undertaking that if we vote for the clause to stand part, the Government will reconsider its wording to ensure that it is completely clear and that there is no scope for misinterpretation? I believe that the Liberal Democrat spokesman, the hon. Member for Ludlow, genuinely misunderstood its application.

Chris Leslie (Labour, Shipley)

Although I appreciate the hon. Gentleman's underlining the deficiencies of the arguments against postal balloting, it is important to move the argument on. The key words in clause 7 are ''encouraging voting''. Most interpretations of that would suggest that it gives a great deal of clarity to the activities in which the Electoral Commission would be involved in pursuance of the powers involved.

In sum, the amendment would prevent all-postal voting, which would be detrimental to the purposes of good democratic activity because it could militate against involvement by larger numbers of people. Although decisions have not been taken on whether to have all-postal ballots in such referendums, we need to keep our options open. It would be wholly improper to

rule that out through the Liberal amendment, and I resist it.

Matthew Green (Liberal Democrat, Ludlow)

The purpose of the amendment was to flush out the Government's thinking on all-postal ballots.

Lawrie Quinn (Labour, Scarborough and Whitby)

May I thank the hon. Gentleman for allowing members of the Committee to flush out the Liberal Democrats on the subject of postal voting? I am sure that people in my area and around the country will be interested to hear about that official Liberal Democrat policy.

Matthew Green (Liberal Democrat, Ludlow)

We have certainly flushed out the fact that we are not at all happy with the situation in which everybody is sent a ballot paper for an election. The Liberal Democrats do not find an all-out postal ballot acceptable and we are more than happy for people to know that. We have flushed out some of the Under-Secretary's thinking and we will return to this subject later. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Philip Hammond (Conservative, Runnymede and Weybridge)

First, I would like to give the Under-Secretary the opportunity—I am sure that he will take it, whether I give it to him or not—to answer the questions that the RNIB posed in its briefing. The RNIB asks for clear assurances about large-print information, pictures, illustrations of texts and video and audio tapes, which would help to make the process more accessible. The briefing continues:

''What provision does the Office of the Deputy Prime Minister intend to make in the orders regulating the conduct of referendums to enable visually impaired people to vote independently and in secret and who will they be consulting over this?''

I have no idea what answers the RNIB would like to hear, but no doubt the Under-Secretary will be able to make something up.

I return to the broader issue of the scope of the clause. I know that Ministers come into Committee Rooms programmed to defend the impeccable drafting of Bills, without ever conceding the possibility that there might be a need to consider any tightening or changes. Usually such a defence precedes the tabling of 300 Government amendments when the Bill is on Report. I would be more comfortable if the Under-Secretary would accept that the clause is open to interpretations that are much wider than the Government intended. The clause states:

''The Electoral Commission may do anything they think necessary''.

Empowering a body to do anything it thinks necessary to achieve a certain end is very unusual. The clause is open to the interpretation that the Liberal Democrat spokesman placed on it: it might encompass making arrangements for the ballot itself. It might also encompass offering incentives to vote or imposing penalties for not voting. If the Government do not intend such things to be included within the scope of the clause, what possible harm can there be in stating that explicitly?

I am being terribly reasonable. I am not saying that I will vote against the clause; I am asking the Under-Secretary to give the Committee some comfort by at least acknowledging that there is an issue to be addressed. Will he reassure us by saying that the Government will consider the issue? If, after further consultation, with a cold towel round the head, the Government agree that a little more definition would improve the clause, will they draw up an appropriate amendment? The Government cannot bear to accept Opposition amendments, so I am trying to be constructive by offering them the opportunity of proposing an amendment later. Otherwise, the Conservatives would certainly want to introduce an amendment of their own.

Gary Streeter (Conservative, South West Devon)

My hon. Friend makes an important point. Does he agree that the wording that one might expect in a clause such as this would be along the lines of: ''The Electoral Commission may take all reasonable steps necessary or expedient''? Could he flush out why that language was not used?

Philip Hammond (Conservative, Runnymede and Weybridge)

My hon. Friend, who has legal training, suggests one possible solution. The Government will have an army of legal draftsmen. I have no idea why that wording was not included. Perhaps the Under-Secretary can enlighten us as to why the wording of the clause was chosen. I should also like to see a clear reference to the period during which the Electoral Commission is empowered or encouraged to carry out the actions to which the clause refers. I assume that it will be from the beginning of the referendum period, but the important question is, until when? Will it be until the cut-off day for publication by a Minister under the 2000 Act, or until the day before the poll? Is there any defined period during which the action is to take place? Clearly, the action is not that which relates to the conduct of the ballot.

I hope that the Under-Secretary will be able to give us a reassurance, by way of a clear ministerial undertaking to reconsider the matter, that will allow us to accept the clause without challenge. Otherwise, I shall encourage my hon. Friends to vote against it.

Edward Davey (Liberal Democrat, Kingston and Surbiton)

I agree with the hon. Gentleman. It is unusual for a clause to be phrased in this way. It contains almost a hint of desperation. It seems to suggest that we are so keen for people to turn out that the commission can do anything it likes; it will be given the maximum powers.

This House exists to constrain power and to ensure that it is used in exactly the way that was intended. The Under-Secretary seems surprised at that, but Parliament is there to ensure that when we give away power it is clearly defined, not open-ended or catch-all. The clause seems to be very broad so I urge the Under-Secretary—in the same spirit as the hon. Member for Runnymede and Weybridge—to think about it a little more. If an assurance to do that were given, the Committee would not have to be divided.

Desmond Swayne (Conservative, New Forest West)

I have a fundamental objection to the clause. I hope that my hon. Friend will be able to persuade me that the clause amended in the way that he would like will be acceptable. My concern is that the proper role of the Electoral Commission is to make sure that proceedings—whatever they are—are transparent, proper and fair. The purpose of the clause seems to be to load on to the commission a different requirement; namely, that it should maximise turnout.

I thought that the Committee had established a measure of agreement at its last sitting over the fact that, given that the referendums are advisory in nature, a crucial—indeed, critical—element of the evidence when judging support for regional assemblies will be turnout. The Deputy Prime Minister was originally charged with making an assessment of support before calling the referendums. Turnout at the referendums will therefore, in many respects, be a measure of his effectiveness and performance in judging that correctly. To place on the commission a duty to maximise turnout will undermine it as a measure of the support for the proposition.

If there were to be a campaign in my region, I would be out there vigorously urging people to vote—against the proposition. However, I would not like to find the Electoral Commission also out there charged with doing anything that might maximise turnout. I do not think that turnout should be a proper concern of the commission. Its concern should be proper conduct, fairness and transparency.

Chris Leslie (Labour, Shipley)

I am trying to scribble down the quote from the hon. Gentleman that turnout should not be a proper consideration for the Electoral Commission, which is slightly stretching the arguments that the official Conservative spokesman would normally make.

I am grateful to the hon. Member for Runnymede and Weybridge for putting on record the representation of the RNIB in respect of ensuring that activities to encourage voting should be as accessible as possible, particularly for those who are visually impaired and have difficulty accessing voting through the normal processes. I can confirm that the commission has so far shown that it is looking hard at how to improve material for voters. As I said, the director of media and public affairs at the commission has confirmed that it intends to produce material designed to encourage partially sighted, blind and disabled voters to participate in any referendum. It is natural to assume and expect the commission to discuss how those practicalities might be taken into account with bodies such as the RNIB.

The substance of the points raised by Conservative Members are about the scope of clause 7 and the notion that it somehow gives away an unwieldy power without constraint to the Electoral Commission.

Adrian Flook (Conservative, Taunton)

The Minister mentioned in his example that the RNIB would have discussions with the Electoral Commission as to what would be expedient or necessary to encourage voting. Would he consider

the Government getting involved in the discussions about how that might be put into practice?

Chris Leslie (Labour, Shipley)

The hon. Gentleman helpfully brings me to one of the points concerning the role of the Electoral Commission, the role of Government and that of Parliament in its definition of the rules governing referendums. While the clause sets out that the commission may do anything that it thinks necessary or expedient for the purpose of encouraging voting, the emphasis is on the word ''encouraging'' voting. It is not for the Electoral Commission to decide the format of voting, whether there should be compulsory voting, or any of the other speculative issues that were raised earlier. It would be for Ministers to decide on those issues and then make an order that would be placed before Parliament. In that respect, I can envisage Ministers wanting to consult bodies such as the RNIB about matters concerning the conduct of a referendum.

The second point raised by Conservative Members was that somehow the Electoral Commission must be constrained by the insertion of the words ''reasonable steps'' or whatever. That is not necessary. First, the commission's functions are defined under the 2000 Act, so it is not a free-standing body outwith existing law. Its roles and functions are set, and its vires are governed, by the provisions in that Act. It also has a public law duty—as does any public body—to comply with the norms and expected assumptions of administrative law. That is why it is not necessary to amend the clause in such a way.

Philip Hammond (Conservative, Runnymede and Weybridge)

I am not a lawyer, and I accept that the commission is constrained by general public law. However, my interpretation of the clause is that it might extend the role of the commission as defined by the 2000 Act to include doing anything that it thinks expedient for the purposes of encouraging voting in referendums. I believe that the campaign for clear English, or whatever it is called, would advocate that a non-lawyer of average intelligence—I shall not flatter myself—ought to be able to make head or tail of the legislation. It is not clear that the Electoral Commission is constrained by the role defined for it in the 2000 Act or that the clause does not extend the scope of its remit.

Chris Leslie (Labour, Shipley)

I understand what the hon. Gentleman is saying, and I know that earlier he sought to be as persuasive and constructive as possible in encouraging the Government to review and amend clause 7. In constantly considering the matter, it occurs to me that the sort of irrational activities he envisages the Electoral Commission potentially becoming involved with would not be permitted, because it is obliged to act in a reasonable fashion not only under the 2000 Act but under its wider duties as a public body. It would be subject to judicial review, intervention and so on should it act in an irrational way.

Let us not forget that we are discussing activities to encourage voting. That is the extent of the commission's role that the clause seeks. If the hon. Gentleman's contention is that it somehow provides unconstrained power for the Electoral Commission in a wider sense, I assure him that it does not, given the

requirements for the commission to act reasonably and rationally in the conduct of its duties.

Philip Hammond (Conservative, Runnymede and Weybridge)

I shall give the Under-Secretary an example and ask him a question. He spoke about the requirement for the Electoral Commission to act reasonably and rationally—we all understand that. However, if one gives the Electoral Commission the right to do anything that it thinks necessary or expedient for the purpose of encouraging voting, whether it is behaving reasonably or rationally will essentially be tested by whether what it is doing is expedient for the purpose of encouraging voting.

Let me give a specific example of a very low-cost way to achieve a higher turnout at referendums. The Under-Secretary might not like it, but it would achieve the purpose. Suppose the Electoral Commission said that a £5,000 prize would be offered in each polling district. One electoral number would be drawn out of a hat containing the electoral numbers of everyone who voted, and one person would get £5,000, £10,000 or whatever. The Under-Secretary might think that that is a terrible, shocking thing, but it would increase the turnout without influencing the outcome.

Nick Raynsford (Labour, Greenwich and Woolwich)

It might.

Philip Hammond (Conservative, Runnymede and Weybridge)

The Minister says from a sedentary position that it might. I can tell him that there are definitely people who will take the trouble to fill in a ballot paper if they think that it might—

Joe Benton (Labour, Bootle)

Order. The intervention is getting rather lengthy.

Chris Leslie (Labour, Shipley)

The point of the hon. Member for Runnymede and Weybridge seems to be that the Electoral Commission would be required to act reasonably only in respect of the provisions to encourage voting. That is not what is expected under the normal rules and constraints on its activity. First, it is subject to requirements to act reasonably and rationally under the 2000 Act and in wider public law, and there is also the added safeguard of the commission's accountability to Parliament. Let us not forget that it is responsible via the Speaker's Committee to Parliament itself, not to Ministers. Parliament would be able to hold the commission to account for its activities. It is already constrained in several ways; it is not necessary to specify such constraints in the clause.

The hon. Gentleman asked me to be rational and flexible in reviewing the provision. However, in thinking again about the points that he raised, I genuinely believe that the clause achieves its purpose and that the Electoral Commission is limited by the norms of requirements to act reasonably and rationally.

Edward Davey (Liberal Democrat, Kingston and Surbiton)

May I phrase it another way? Let us imagine that we are talking not about the Electoral Commission but about the Secretary of State. Would the Under-Secretary be as happy with the words, ''The Secretary of State may do anything he thinks necessary or expedient for the purpose of encouraging voting'' as he is with those in the clause?

Chris Leslie (Labour, Shipley)

That is entirely speculative. It is not the purpose of the clause, the wording in the clause, or what we want to achieve. I have already said that other issues concerning the conduct of referendums are a matter for Ministers via Parliament and orders approved by it. The clause simply gives the Electoral Commission a role to encourage voting, which, surely, we all believe is a virtuous activity.

Philip Hammond (Conservative, Runnymede and Weybridge)

I listened carefully to the Under-Secretary, but he did not deal with my specific example. Is he saying that the Electoral Commission would be constrained by its constitution, by the Political Parties, Elections and Referendums Act and by clause 7 from doing what I suggested was a possible way of encouraging voting at referendums?

Chris Leslie (Labour, Shipley)

It is impossible for me to give too many specific examples of the sort of activities that we want to encourage, subject to the constraints that have been set out on the Electoral Commission. The hon. Gentleman has met officials from the Electoral Commission and knows them to be reasonable, independent and fair minded. Of course, we must ensure that we protect against some of the wilder opportunities that may exist in aberrational situations, but the existing Act and existing public law duties on public bodies provide precisely that level of protection. I accept that the hon. Gentleman made an argument, but he should be assured that protection exists in those provisions.

Philip Hammond (Conservative, Runnymede and Weybridge)

Let me put it another way. Clearly, the Under-Secretary does not know whether the Electoral Commission would be able to do what I suggested. If it were able to do that and did so, would the Under-Secretary be happy?

Chris Leslie (Labour, Shipley)

I am always a happy individual, regardless of what the Electoral Commission might do. I would not want my happiness to be contingent on its activities. My understanding is that the Speaker's Committee scrutinises the estimates of the Electoral Commission and its proposed expenditure in advance of its activities being undertaken, so there is a measure of protection and accountability via Parliament in relation to the commission's putative activities. It would serve Opposition Members poorly if they undermined the protection that parliamentary accountability might bring to the commission's role.

Gary Streeter (Conservative, South West Devon)

The Under-Secretary is doing an impressive job in defending the indefensible. He referred to the Political Parties, Elections and Referendums Act. Is he aware that powers that shape what the commission may or may not do are contained in section 13(4) of that Act? It states that

''The Commission shall perform their functions under subsection (1) in such manner as they think fit but may, in particular, do so by'',

and goes on to give specific examples. There is nothing there about reasonable activities, only a reference to

''in such manner as they think fit''.

What is the reasonable, rational framework to which the Under-Secretary keeps referring? It is certainly not in the 2000 Act. He referred vaguely to public law duties, but the commission is a new institution, set up

under a specific Act of Parliament which defines its powers. It is not under an obligation to act reasonably or rationally and clause 7 gives it even wider powers.

Important points have been made and I invite the Under-Secretary to take the matter away and to consider it further.

Chris Leslie (Labour, Shipley)

I would not wish to challenge the hon. Gentleman's abilities and legal training, but other provisions in the 2000 Act cover the establishment of the Electoral Commission, ensure that it is held to account and place a number of constraints upon it. If the hon. Gentleman is saying that public bodies such as the commission are entirely free to do whatever they wish, including undertaking unreasonable and irrational activities, I would, at the very least, challenge his understanding of the normal constraints, which exist through public law duties, on those public bodies. Those constraints prevent them from acting in that manner, and they would be challenged were they to engage in irrational or unreasonable activities.

Edward Davey (Liberal Democrat, Kingston and Surbiton)

Will the Under-Secretary give way?

Chris Leslie (Labour, Shipley)

I do not want to continue the debate for much longer, but I cannot resist giving way to the hon. Gentleman.

Edward Davey (Liberal Democrat, Kingston and Surbiton)

The Under-Secretary said that Parliament could hold the Electoral Commission to account through the estimates. That is the last resort of a Minister—I almost said ''scoundrel''. The House last rejected the estimates in 1919. The rulebook gives us three days in which to debate them, but we do not do so. When I have asked Ministers questions about them, they never come to the House with the answers because they do not expect to debate them. It is not satisfactory to suggest that we can hold the Electoral Commission to account through the estimates.

Chris Leslie (Labour, Shipley)

Although I have yet to experience sitting on the Speaker's Committee, I understand from those who have sat on it that it scrutinises the estimates in great—some might say excruciating—detail.

Mr. Hammond rose—

Chris Leslie (Labour, Shipley)

It is not right for the hon. Member for Kingston and Surbiton to undermine the potential role of parliamentary accountability. The Electoral Commission is accountable in that way, it is independent, fair and reasonable, and it is constrained by the norms of public law.

Philip Hammond (Conservative, Runnymede and Weybridge)

Since the Under-Secretary would not give way, he may have forgotten that the technique of sitting down abruptly does not necessarily work in Committee. Bearing in mind that many members of the Committee are not lawyers, can he confirm that his essential point is that the Electoral Commission's behaviour is subject to judicial review? Can he also confirm that the court would only be able to review the way in which the Electoral Commission took its decisions—whether it had been rational and reasonable—and not their substance?

I have still not received a satisfactory answer to the question of whether the Electoral Commission would or would not be able to do something, which could be entirely rational and reasonable, outwith what the

Under-Secretary had in mind when he drafted clause 7 one Thursday evening.

Chris Leslie (Labour, Shipley)

As I said ad nauseam earlier, the Electoral Commission is subject to challenges to judicial review of its conduct and whether its activities are reasonable in a normal sense. The hon. Gentleman has posited a number of hypothetical scenarios. His expectations and imagined suppositions of what the Electoral Commission would devise stretch credulity. I believe that the Electoral Commission is reasonable, and I hope that he will accept that.

Philip Hammond (Conservative, Runnymede and Weybridge)

Although I have an elastic credulity, it, and that of my hon. Friends, is being stretched to the limit by the Under-Secretary. It would have been much better if he had stood up and said, ''We think it is okay but we are open-minded people who are prepared to look again. We will read the report of the Committee's proceedings to see what has been said and have a think about whether we can tighten up the language.''

No one is asking the Under-Secretary to change what he intends clause 7 to do. All we are asking him to do is to make his intention absolutely clear in order to avoid any misunderstanding. Other hon. Members may want briefly to contribute to the debate, and I shall listen to what they say before I ask my hon. Friends whether we should seek to divide the Committee.

Gary Streeter (Conservative, South West Devon)

I was not going to speak again, but I am becoming increasingly concerned about the issue. Judicial review entails a court looking at the statutory powers of any public body, which includes local authorities and the new Electoral Commission. The court looks at the decisions made by such a body to see whether it has made its decisions in accordance with its powers. The defining element in the long and complex 2000 Act is in section 13(4), which empowers the commission to

''perform their functions . . . in such manner as they think fit''.

It goes on to define that with some particular examples.

Clause 7 says that the commission may do anything it thinks necessary or expedient. I cannot see how almost any activity could be excluded by those words. Committee members may be seeking to hide behind a future judicial review—the courts keeping the commission in line with its statutory powers and framework—but its statutory powers and framework are wide, and a judicial review is unlikely to help.

The situation is made worse by the fact that that body is untested and untried in relation to the operation a referendum. We have no idea what view it may take when it exercises its proper function of ensuring that people are aware of the issues and are encouraged to vote. I strongly support a high turnout and the dissemination of information to every potential voter by the commission. However, we have no idea how it might go about doing that.

Therefore, it is important that the clause gives maximum guidance to the commission. It should set a clear framework. It should certainly include the word

''reasonable''. I do not know if my hon. Friend the Member for Runnymede and Weybridge will decide that we should vote against clause 7. Based on what I have heard this morning, I feel that the clause cannot be allowed to proceed into law. It is a recipe for confusion and potential disaster.

Philip Hammond (Conservative, Runnymede and Weybridge)

Having listened to the wise words of my hon. Friend, and taking into account everything that has been said—and much that could have been said—by the Under-Secretary, I must press the matter to a Division.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 8, Noes 6

Clause 8 - Provision of information to voters

Philip Hammond (Conservative, Runnymede and Weybridge)

I beg to move amendment No. 29, in

clause 8, page 4, line 20, leave out subsection (4) and insert

'No Minister of the Crown may make any order under section 109(6) of the 2000 Act in respect of a referendum held pursuant to section 1 above'.

We now turn to the issue of information disseminated to voters, and the specification of the various days in relation to the referendum period under the 2000 Act. Subsection (3) of clause 8 defines the term ''appropriate day'' in relation to the referendum period as being the 43rd day of that period, if applications had been made under section 109 of the 2000 Act, and the 29th day of that period if no such applications had been made. That is fine; I have no problem with it. However, subsection (4) gives a Minister carte blanche to define any other day as the appropriate day—next Tuesday fortnight, the day after the Deputy Prime Minister's wife's birthday, or any other day.

That seems to be wrong in principle. It provides too much ministerial discretion. No doubt hon. Members who served on the Committee that considered the Political Parties, Elections and Referendums Bill spent many hours, days and perhaps nights—that was in the good old days—discussing the Bill's details. Its purpose was, among other things, to set down procedures for the conduct of referendums, which are clearly going to become a more important and regular feature of our democracy, so that there was an objective set of rules and a framework for that.

If referendums are to be a regular feature, each should not be subject to manipulation by the Government of the day, seeking to get the result that they want. That is why legislation must contain provisions on, for example, the appropriate day. This is a small example of a wider tendency in this Bill and in many others to set out a scenario but then insert a clause that gives a Minister power to override the legislation that Parliament has considered in depth, and substitute any other provision that he might feel like. That will be done by order, and so be subject to debate, but that debate will be a short one in a Standing Committee on a statutory instrument. That will not be adequate—it will certainly not give the comprehensive opportunity for debate afforded by the principal consideration of a Bill's details in Standing Committee. This Committee must make a stand now and reject parts of the Bill that give Ministers power to override other provisions in the Bill and make different arrangements.

We are discussing a referendum in which, as we all understand, the Government will not be a neutral party. The Government are a protagonist in this debate. They will already have a huge advantage over those campaigning on the opposite side because, although there will be restrictions throughout the referendum period on what the campaigns can do, the Government will be unrestricted until 28 days before the referendum. That is a huge imbalance in the arrangements, which I understand is likely to be tested in the courts in due course in relation to the Human Rights Act 1998 and the European convention on human rights. As the law appears to stand at the moment, however, the Government will already have a huge advantage. They must not be allowed to enshrine that advantage further by manipulating the definition of the appropriate date to the disadvantage of one side of the argument.

That could work to the disadvantage of one side of the argument because the no campaign will not have the benefit of the Government's information dissemination capability, which continues until the 28th day before the referendum, whereas the yes campaign, although also constrained by a change in the appropriate day, will effectively be underwritten by the Government's information campaign.

Gary Streeter (Conservative, South West Devon)

I hope to make a brief contribution, consistent with a point that I made in Committee last week. One of the important things about any Act of Parliament is that it gives clarity and certainty. At the beginning, clause 8 appears to give clarity and certainty about the time scales in which the Electoral Commission can designate an organisation under the 2000 Act to be funded to take forward the yes or no campaign. Then, as my hon. Friend the Member for Runnymede and Weybridge said so powerfully, one reads subsection (4), which refers to section 109(6) of the 2000 Act. The time scales in clause 8(2) and particularly (3) appear to be clear, but subsection (4) refers us to another Act of Parliament. One might assume that section 109(6) of the 2000 Act sets out a

limited range of circumstances in which a Minister may make an order, and that they will probably be clearly defined and closely controlled. However, this is the sort of smoke-and-mirrors operation that we have come to associate with this Government.

Section 109(6) of the 2000 Act states:

''The Secretary of State may, in the case of any referendum to which this Part applies, by order provide for this section to have effect as if each, or either, of the periods of 28 and 14 days referred to in subsections (2) and (3) was instead such shorter or longer period as is specified in the order.''

That is enough to make anyone give up. It is saying that the Secretary of State can by order change the dates that are set out in the Bill and substitute any other date that he chooses; that might create a shorter or longer period.

Philip Hammond (Conservative, Runnymede and Weybridge)

Does my hon. Friend agree that the effect of that could be to delay the designation of bodies for campaigning purposes in a way that would wholly disadvantage the campaign for the opposite side of the argument from the Government, who would have their own campaign?

Gary Streeter (Conservative, South West Devon)

My hon. Friend is absolutely right. We must make absolutely sure that we build sufficient safeguards against that.

Why is this matter important? As my hon. Friend has already made clear, the Government will not be neutral if a referendum is held in any region of this country—we are expecting at least one referendum during this Parliament. The Deputy Prime Minister made it clear on the Floor of the House a week or two ago that he will be campaigning vigorously and ferociously in favour of a yes vote in a referendum. He will be the Secretary of State who may by order provide for the dates to be changed at short notice, overnight and very suddenly. No explanation, or justification will be necessary because the Secretary of State has that power under section 109(6) of the 2000 Act.

I do not doubt for a second the integrity of the Deputy Prime Minister, but it is human nature to do all one can to advance a cause to achieve the result that one wants. I do not think that we should allow the Government to be judge and jury. Clause 8(4) is utterly unnecessary. I want the Minister to explain why it is in the Bill, and under what circumstances a change of timetable would be necessary.

My final point on clause 8 relates to subsection (3). I do not know whether it was drafted deliberately to make it almost incomprehensible. When one drills down, it is fine; it is talking about a 14-day gap. However, can the Minister explain why it is drafted in that way? What is the significance of the 43rd day and the 29th day? I know that they are 14 days apart, but why such phrasing? I am sure that it is my failing, but I simply do not understand.

I repeat that clause 8(4) is not appropriate to go on the statute book. I strongly support the amendment.

Nick Raynsford (Labour, Greenwich and Woolwich)

I hope that I can reassure the hon. Members for Runnymede and Weybridge and for South-West Devon (Mr. Streeter) that they have no reason to be as alarmed by the provision as they appear to be. They know that the clause relates to the

provision of information for voters and is a safeguard against circumstances in which there may not be a designated yes and no campaign. In such situations, the Electoral Commission will be able to provide neutral and informative information to electors. I think that we would broadly agree that that is a desirable outcome.

Section 109(2) of the 2000 Act sets a standard period of 28 days from the start of the referendum period in which permitted participants must apply to the Electoral Commission to be designated as organisations to which assistance such as grants will be available. Permitted participants could include a campaign group that has notified the Electoral Commission, under section 106 of the 2000 Act, of what it is and what result in a referendum it stands for.

Section 109 sets a standard period of 14 days after the end of that 28 days within which the Electoral Commission must determine applications for assistance as a designated organisation. However, section 109(6), to which the hon. Member for South-West Devon alluded, also allows for an order to be made to vary those periods—they can be shorter or longer. There are several circumstances in which that might apply. For example, were a referendum to be held over a period in which there were one or more bank holidays—for example, one that occurred early in the new year, so that the referendum period covered the Christmas and new year holidays—the Electoral Commission might feel that it did not have sufficient time within the 14-day period adequately to consider whether there were two organisations that should be registered. That is one possible eventuality. I shall leave it at that, unless the hon. Gentleman would like me to give more examples.

Gary Streeter (Conservative, South West Devon)

What if the first referendum takes place in the north-east and the yes campaign, a few days before the end of the period in which it should apply to be a designated organisation, has an internal falling-out or other difficulty and cannot quite get its act together in time? Would that be sufficient reason for the Secretary of State to agree to a delay?

Nick Raynsford (Labour, Greenwich and Woolwich)

Let us consider that particular eventuality. If there were uncertainty as to whether there was a body that could be designated as a yes campaign, the Electoral Commission would consult the provisions in clause 8 to decide whether it should provide information since it was unable to register a yes and a no campaign. It has to register both, not just one. If there was an element of doubt about whether the organisation could get its act together, I can envisage that the commission might want to explore that with it. As the hon. Gentleman implied earlier, it might be subject to a threat of legal action by a putative campaigning body that, for reasons of internal disagreement, found itself unable to get its act together in time, suddenly discovered that it was ineligible for registration, and sought to overturn the 28-day provisions that arbitrarily debar it. Would the hon. Gentleman really argue that it should never be possible to vary those periods of time in such circumstances?

Gary Streeter (Conservative, South West Devon)

Does the Minister agree, though, that the clause cannot apply until after the appropriate day

has been and gone? If the appropriate day is delayed and there is no designated party for the no campaign, there will still be a Government who are actively campaigning for the yes campaign. The Government therefore have a clear incentive to delay the appropriate day so that the Electoral Commission is unable to disseminate information promoting awareness of both sides of the argument.

Nick Raynsford (Labour, Greenwich and Woolwich)

That is a pretty fanciful interpretation. We are considering circumstances in which the Secretary of State might believe, probably on the basis of representations from the Electoral Commission, that there is a case for varying the timetable to allow the proper operation of the legislation as prepared by Parliament. It is pretty fanciful to suggest that the Secretary of State might try to manipulate that process to give himself more time to campaign without a registered alternative campaign group, and I can assure the hon. Gentleman that the Government have absolutely no intention of behaving in that way.

Gary Streeter (Conservative, South West Devon)

The Minister is making some good points, but why was the power to vary dates given to the Government, not to the Electoral Commission?

Nick Raynsford (Labour, Greenwich and Woolwich)

If the hon. Gentleman bears with me, he will discover that the Government have the power to set the entire referendum period, so there must be an interface. I do not intend to push the technical arguments, but the amendment is defective because it would still leave the Government free to set the referendum period, while taking away the power to vary it to allow for the registration of particular campaigning groups, which appears to me to be an undesirable outcome.

Amendment No. 29 would require that in the case of referendums, applications to be a designated organisation always have to be made in the 28-day period, and the Electoral Commission always has to determine applications during the next 14 days. It is based on the premise, which the Opposition may have difficulty in justifying in the light of my examples, that there could never be circumstances in which different periods were appropriate, even though Parliament recently passed legislation on the assumption that there might be—the PPER Act. As I have already said, the amendment would not remove the ability of the Secretary of State to set the length of the referendum period, which is determined in clause 4. It would fix only the period for applications from permitted participants to be the organisations designated to receive assistance, and the time taken by the Electoral Commission to determine those applications.

Philip Hammond (Conservative, Runnymede and Weybridge)

The Minister could tackle the substance of our concerns if he gave an undertaking that in circumstances where the appropriate day was delayed, the Government would not start disseminating information in support of the yes campaign until after the appropriate day. That would have the desired effect.

Nick Raynsford (Labour, Greenwich and Woolwich)

I have already given the hon. Gentleman a pretty clear indication that the Government will act properly at all times in that

area. I really do not accept his somewhat paranoid view about the potential behaviour of the Government as a basis for amending legislation.

Philip Hammond (Conservative, Runnymede and Weybridge)

I have not understood the Minister's reply—was it yes or no? Is the Minister saying that the Government would not disseminate information until the designated bodies were also able to get started, or is he saying that they would, and it is perfectly proper for them to do so?

Nick Raynsford (Labour, Greenwich and Woolwich)

If the hon. Gentleman thinks about it, certain factual information should be set out for the benefit of the public, some of which may well come from the Government. That information cannot be set out in the 28 days prior to the referendum. That is another timetable factor. That information has to be put out before the last 28-day period bites. Therefore, it is perfectly proper for the Government to put out factual information, but the hon. Gentleman's suggestion—if I am wrong, he will correct me—was that the Government might malevolently use the provision to delay the process so that they could continue to put out biased information with no opportunity for a registered no campaign to put out alternative information. That struck me as fanciful and rather unworthy as an allegation.

Philip Hammond (Conservative, Runnymede and Weybridge)

I certainly was not suggesting that the Government would act malevolently, but as my hon. Friend the Member for South-West Devon pointed out, the Deputy Prime Minister has made it abundantly clear that he intends that the Government should campaign actively for a yes vote in such referendums. That is Government policy and it was in the Labour party's manifesto. We have no qualms about the Government actively campaigning for a yes vote, but we have to ensure that the playing field is level. The Minister could soothe our concerns if he would state that the Government do not intend to use Government machinery to issue information until after the appropriate day.

Nick Raynsford (Labour, Greenwich and Woolwich)

The problem is that after the appropriate day—if it is the second of the appropriate days—we are straight into the 28-day period leading up to the referendum, so the Government would be debarred by the existing legislation from issuing information during that period.

Philip Hammond (Conservative, Runnymede and Weybridge)

Not necessarily.

Nick Raynsford (Labour, Greenwich and Woolwich)

It would, because from the appropriate day, if it is the 43rd day, there are just 27 days to go until the referendum, if the timetable set out in the legislation is pursued. The hon. Member for Runnymede and Weybridge would put the Government in the impossible position of having to give an undertaking that we would not put out any information until a date after which we are debarred from putting out information. That is a preposterous suggestion.

Philip Hammond (Conservative, Runnymede and Weybridge)

I may have misheard the Minister, but I thought that he said that it was for the Government to determine the referendum period.

Nick Raynsford (Labour, Greenwich and Woolwich)

Yes.

Philip Hammond (Conservative, Runnymede and Weybridge)

If it is for the Government to determine the referendum period, it cannot possibly be right a priori to say that the appropriate day will always coincide with the 28th day before the referendum.

Nick Raynsford (Labour, Greenwich and Woolwich)

The hon. Gentleman should have listened more carefully. I did not say that it would always be the case; I said that it would be the case if the Government pursued the standard period, which they would in most cases. In that situation, if we were debarred from saying anything or gave an undertaking that we would not say anything until the appropriate date, we would be caught by the double whammy that there would then be a statutory bar against us saying anything after that date.

If the amendment were accepted, the Secretary of State could, as the hon. Gentleman pointed out, decide that a long referendum period was appropriate in particular circumstances. However, he would not be able to give permitted participants more than 28 days in which to make their applications, nor would he be able to give the Electoral Commission longer than 14 days in which to make its determinations, even if the commission was pressing him to do so. That would be unsatisfactory. The commission might have good reasons for believing that it needed longer than 14 days to reach a decision, but the Government would be denied the opportunity to amend that.

The proposals in the amendment are not coherent and they do not add good sense to the Bill. I hope that I have assured the hon. Gentleman that the existing provisions are there for good, common-sense reasons and that the Government do not intend to abuse the provisions for campaigning purposes—indeed, I have demonstrated that it would be difficult for them to do so. I hope that the hon. Gentleman will agree to withdraw the amendment.

Philip Hammond (Conservative, Runnymede and Weybridge)

I am grateful to the Minister for effectively undertaking, on behalf of the Government, not to abuse the provisions for campaigning purposes. Ministers typically accuse the Opposition of paranoia. If they look at the Government's Bills, they will understand why we are worried. These days, all Government Bills are littered with such vast numbers of discretionary powers for Ministers that Opposition Members have to be extremely wary and have to probe Ministers in Committee.

Being realistic, Opposition Members know that the Government will not accept the removal of such wide powers. The best that we can hope to achieve is that we will get a Minister at the Dispatch Box to give some binding undertakings about how the powers will and will not be used. Although I accept the spirit of the Minister's assurance, it might be difficult to tie down its precise meaning. I think that he has recognised that there is an underlying concern, although he would regard it as part of the Opposition's paranoia.

The interaction of this legislation and section 109 is complicated. I am not entirely sure that the issue that the Minister raised of there being a zero window for Government information dissemination is a real concern or one that could not be avoided if

Ministers were so minded. I will consider what the Minister has said and will look again at the Bill and the 2000 Act. If I am not satisfied, I will return to the issue later. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Philip Hammond (Conservative, Runnymede and Weybridge)

I beg to move amendment No. 8, in

clause 8, page 4, line 24, leave out from 'secure' to end of line 26 and insert

'a dissemination of such information to the maximum number of persons entitled to vote in the referendum that can be cost effectively achieved'.

Joe Benton (Labour, Bootle)

With this it will be convenient to take amendment No. 34 in

clause 8, page 4, line 26, at end add—

'(6) The cost incurred by the Electoral Commission pursuant to this section may not exceed the aggregate of the maximum permitted grants that the Electoral Commission would be empowered to make under subsection 110(2) of the 2000 Act if it had designated a participant in respect of each of the possible outcomes of the proposed referendum'.

Philip Hammond (Conservative, Runnymede and Weybridge)

Amendment No. 8 deals with subsection (5), which is written in terms of an absolute obligation:

''Information provided in pursuance of this section must be provided by the means the Commission think is most likely to secure (in the most cost effective way) that the information comes to the notice of all persons entitled to vote in the referendum.''

The commission has a choice about methodology, but it must use the most cost effective way of doing what is most likely to mean that information comes to the notice of all persons. On a moment's reflection, that is not a sensible ambition to set for the Electoral Commission. Bringing something to the notice of all persons, or using the means most likely to do that, is very ambitious.

I hesitate to say that the Government are usually reluctant to spend public money unnecessarily, because they no longer speak with one voice on that, but the Chancellor certainly used to be reluctant to spend public money unnecessarily, and the reference here to cost-effectiveness does not bite. As I read the subsection, all it does is require that the Electoral Commission, in judging the different methods that are most likely to ensure that information comes to the notice of all persons, chooses the most cost-effective of those. In my humble interpretation, the commission will not have the option of choosing a method that is significantly less costly, but less likely to ensure that information comes to the notice of all persons entitled to vote.

Amendment No. 8 would remove the words from ''secure'' to the end of the subsection and insert words so that the subsection would require the use of the means most likely to secure

''a dissemination of such information to the maximum number of persons entitled to vote in the referendum that can be cost effectively achieved''.

I imagine that that is what the Government intend; I do not imagine that they intend to steer the Electoral Commission to the last marginal voter at a cost of some tens of millions of pounds, if that is what it takes. That needs to be said in the Bill.

Jim Knight (Labour, South Dorset)

Does not the amendment potentially discriminate against people in rural areas, whom the hon. Gentleman mentioned earlier today? If the commission disseminated information only to the maximum number of people, it might focus on places where the maximum number of people lived. The original wording makes sure that all persons entitled to vote will get the information, including those who live in a remote part of the region, to whom it might be difficult to get information.

Philip Hammond (Conservative, Runnymede and Weybridge)

I appreciate the hon. Gentleman's point. The Bill introduces an absolute requirement to get the information to all persons. I will not suggest that the amendment is perfectly drafted—the Government might accept the principle but suggest better wording—so I stand to be corrected, but I understand that the phrase

''that can be cost effectively achieved''

could involve moving quite a long way up the cost curve. Clearly, however, some voters at the margin will be just too expensive to reach and it would not be sensible to try to reach that last small percentage of electors. For example, they might be people with such profound disabilities that it would not be practical, in a cost-effective way, to get the information to them; or they might be people who had sailed off to a remote and hitherto uninhabited island off the north-west coast of Scotland. An element of common sense is required.

The amendment is trying to make the point that the clause as written places an absolute obligation without modifying that in any way to deal with the ability to access such marginal electors in a cost-effective way.

Jim Knight (Labour, South Dorset)

The original wording says not that the means used should be those that are certain to secure that end in the most cost-effective way, but that they should be those the commission thinks are ''most likely'' to do so. That allows the commission to go some way up the cost curve, but clarifies the aspiration that all persons should be notified far more clearly than the amendment does.

Philip Hammond (Conservative, Runnymede and Weybridge)

I do not think that that is right. The other Minister spoke earlier about the Electoral Commission's general duties—

Chris Leslie (Labour, Shipley)

The other Minister?

Philip Hammond (Conservative, Runnymede and Weybridge)

The ''mere'' Minister spoke earlier about the Electoral Commission's general duties in public law. As I understand it, the commission is obliged to do what it thinks is most likely to ensure that the information comes to the notice of all persons. I interpret that to mean that if two options were available to the commission, and one of them, which is most likely to secure that the information comes to the notice of all persons, costs £10 million and the other, which its promoters happily say will reach only 99 per cent. of voters, costs £1 million, clause 8 will not provide the Electoral Commission with the ability to opt for the £1 million solution; it will have to go for the £10 million solution.

That is my interpretation, but I shall be interested to hear what my hon. Friend the Member for South-West Devon, who has the benefit of legal training,

thinks. I shall be interested to see how the Under-Secretary argues against the amendment—I deduce from his body language that he is against it.

Matthew Green (Liberal Democrat, Ludlow)

May I tease out the hon. Gentleman's argument on that point? We have heard that the Government may consider all-out postal voting in which a ballot paper would be sent to every home. Is he suggesting that in those circumstances they should not send information about voting to every home? In that case, a ballot paper would be sent but information about the referendum would not.

Philip Hammond (Conservative, Runnymede and Weybridge)

Clearly, the Electoral Commission will send information to every postal address on the electoral register, but that is not adequate. It would not be taking the steps that it thinks are most likely to ensure that the information comes to the notice of all persons entitled to vote by simply putting a letter in the post; it is required to go much further than that.

We have already heard the RNIB's concerns about ensuring that information reaches blind and partially sighted persons, which is fine, but other people who are entitled to vote may require the Electoral Commission to take more extreme measures. All I am suggesting—I should have thought that this was uncontroversial—is that there is a cut-off point beyond which it is not financially sensible to require the Electoral Commission to go. It should at least be given some discretion to use common sense in interpreting its duty to reach the greatest number of people without being required to reach all people.

Amendment No. 34 would introduce a new subsection to clause 8. It deals with a situation in which the Electoral Commission is disseminating information by virtue of clause 8. If the Electoral Commission designates organisations under section 108 of the 2000 Act, a financial limit on their spending in support of their campaigns for the yes or no outcomes will be imposed upon them. In his halcyon days as an iron Chancellor, the Chancellor would have supported me in those arguments, but not any more. He seems to enjoy spending public money and believes that there is a bottomless pit of taxation potential. In the old days, the Chancellor would have agreed with me that it would be perverse if there were so little public interest in a referendum that the Electoral Commission was unable to designate organisations under section 108 of the 2000 Act, and therefore had to take on the role of disseminating information itself. It would be perverse if the effect of such minimal public enthusiasm were more money being spent on the campaign.

Amendment No. 34 would limit the spending of the Electoral Commission when it takes on the role of information disseminator in the absence of designated yes and no campaigns to the aggregate of the maximum spending that would have been allowed by the yes and the no campaigns had such organisations been designated. It seems fairly obvious that that is something that the Electoral Commission would do

anyway. However, the role of information dissemination can become rather more expensive when taken on by public bodies rather than voluntary organisations. There is no argument for spending more public money to do a job than would have been allowed if there had been enough interest to designate yes and no campaign bodies, which would have spent private money.

Gary Streeter (Conservative, South West Devon)

I remind the Minister that he did not answer my question about the wording of subsection (3). Why is it phrased as it is and not in the usual way, referring to 14 or 28 days?

As I understand clause 8, given that I have not spent weeks studying it, the Electoral Commission is charged to receive applications from organisations that want to conduct a yes campaign or a no campaign and decides who will make up the campaigning groups. We are considering a situation in which no such groups come forward—that could happen. As the deadlines approach, the Electoral Commission suddenly realises, probably to its horror, that no campaign groups have come forward: ''Oh, my goodness, we have to do it ourselves.'' The commission may not have spent months preparing for such a situation. If it spent months preparing campaigns, it would have wasted time and money if groups came forward to campaign for the yes or no sides, as they probably will. However, we are considering what would happen if they do not.

What will the commission do? It will instantly call in management consultants and ask how on earth it is to get the message across to everyone in the region about the forthcoming referendum on regional government. We know that no one is the least bit interested in it, but the commission must call in management consultants to advise on how to get the message across.

The consultants will guarantee that 100 per cent. of the people will hear about the referendum if the commission spends a certain amount—or, as my hon. Friend the Member for Runnymede and Weybridge made clear, 99 per cent. will hear about it—that 95 per cent. will hear about it if a lower amount is spent, or that only 90 per cent. are likely to hear about it if still less is spent. The package will consist of television, radio, post and posters—a mixture of activity.

The commission will be given a descending list of the numbers of people likely to be reached by any package that it may choose to promote the message. As my hon. Friend has clearly set out, subsection (5) does not give it discretion to choose other than the highest-ranking package on the list:

''Information provided in pursuance of this section must be provided by the means the Commission think is most likely to secure . . . that the information comes to the notice of all persons entitled to vote''.

Nick Raynsford (Labour, Greenwich and Woolwich)

And the words in brackets—

Gary Streeter (Conservative, South West Devon)

The Minister of State says, ''in brackets'', but I still do not know the legal interpretation of brackets in a statute. How does one deal with words in brackets?

Three parts of the clause compel the commission to choose the most expensive package, which is most likely to secure

''the notice of all persons''.

It will have no discretion but will have to accept the most expensive package to reach 100 per cent. of the people. Bear in mind that the situation will be upon it in a hurry—at the last minute—and it will not have had time to prepare beforehand. My hon. Friend has made some very powerful points and I much prefer his wording to the wording in the clause.

What is the importance of the omission in subsection (5) of the word ''Electoral'' before the word ''Commission''? I am not aware of a separate definition of ''Commission''. As far as I can work it out, the rest of the Bill refers to the Electoral Commission—perhaps I am missing something. Subsection (5) refers to ''the Commission.'' Is that a simple drafting error or is it profoundly important? I do not want to be offensive to anyone who may be listening to our discussion, but I have the impression that the clause was drafted in a hurry. It might have been drafted during the World cup when England was playing Brazil; the television might have been on in the room in which the clause was being drafted and Michael Owen might have just scored the opening goal with all that followed.

I am not convinced that the drafting of subsections (3) and (5) has been thought through. In the circumstances that I described and when the Electoral Commission is acting at the last moment to get its message across, it will have no discretion but to go for the highest package that the management consultants put forward and I do not believe that that is what the Government intend. I hope that the Minister, whose replies are always impressive, will be able to persuade us that the Bill has been properly drafted, carefully thought through and will have the Government's intended outcome.

Nick Raynsford (Labour, Greenwich and Woolwich)

I hope that I can give exactly the assurance that the hon. Members for Runnymede and Weybridge and for South-West Devon seek.

Subsection (5) requires the commission to act in the most cost-effective way. That is a clear requirement of the words in brackets and the fact that they are in brackets in no way invalidates them. I shall not enter a lengthy constitutional debate about the significance of brackets in legislation. We might learn a lot from parliamentary counsel, but I am clear that the reference to ''the Commission'' envisages the Electoral Commission. I am more than happy to take further advice on whether omission of the word ''Electoral'' is a defect, but I do not believe that there is any doubt that we are discussing the obligation on the Electoral Commission. However, I have undertaken to consider the matter again and will write to the hon. Member for South-West Devon when I have taken soundings.

Philip Hammond (Conservative, Runnymede and Weybridge)

The Minister has come to the key point at the very beginning. He said that the drafting requires the Electoral Commission to act in the most cost-effective way under subsection (5). That is not correct. It requires the Electoral Commission to reach

all persons and to do so in the most cost-effective way. Is it correct that that can mean only the most cost-effective way of the various options for reaching all persons?

Nick Raynsford (Labour, Greenwich and Woolwich)

The obligation is to act in the most cost-effective way in pursuit of the obligation to reach all voters. We do not believe that it would be right to allow the commission to pick and choose the categories of electors at whom to target information. Indeed, had we done so, the Opposition would have criticised us with scare stories suggesting that references to only those persons who can be cost-effectively reached would open the door to all sorts of shenanigans with the Government providing information via the Electoral Commission to certain categories of people. We heard many such comments earlier today. When moving amendment No. 7, the hon. Member for Runnymede and Weybridge expressed concern about the Electoral Commission doing anything that might disproportionately benefit the possible outcome of the referendum. Had we chosen the wording that he suggests in the amendment, we would be openly criticised by the Opposition for opening the door to exactly such partiality.

When discussing amendment No. 7, the hon. Gentleman said that electronic communication tends to favour disproportionately one section of the population. I do not know the figures and I am speaking from the top of my head, so they may not be correct, but I could foresee a situation in which the management consultants that the hon. Member for South-West Devon presumed would be brought in to advise the Electoral Commission might advise that using electronic communication would make it possible to reach people at a substantially lower cost per person than mailing through the traditional post. If that were so, the amendment could be used to justify limiting communication to that more cost-effective way of reaching people.

Philip Hammond (Conservative, Runnymede and Weybridge)

Perhaps the Minister has lowered the tone a bit—we are having not a political debate, but a debate about syntax. If the Minister's interpretation of

''in the most cost effective way''

is correct, in that it qualifies the requirement to reach all persons because there is an obligation on the Electoral Commission to use the most cost-effective way, a route that offers £1 per 1,000 electors contacted must be pursued instead of a route that costs £2 per 2,000 electors contacted, yet the former may achieve only 75 per cent. penetration, while the latter may achieve 95 per cent. That cannot be what the Minister wants.

Nick Raynsford (Labour, Greenwich and Woolwich)

The hon. Gentleman misunderstands me. I was making it clear that the objective of the Electoral Commission under the subsection is to ensure that information is provided in a manner that is most likely to secure that it

''comes to the notice of all persons'',

but in the most cost-effective way. That is the most sensible approach. The commission has an all-embracing obligation to try to get information to everyone, if possible, and it must do so in the most cost-effective way. When the management consultants we have heard about advise the Electoral Commission, they may, as the hon. Member for South-West Devon suggests, give several different options.

The hon. Member for Runnymede and Weybridge cited two options, one of which cost £10 million and would reach 100 per cent. of electors, the other of which cost only £1 million and would reach 99 per cent. Were I in the position of the Electoral Commission, I should want to know why so little extra benefit was achieved from the £9 million, and I should ask obvious questions—such as whether it might be possible to reach 99.7 per cent. with £1.5 million—to judge whether, in the words of the hon. Member for Runnymede and Weybridge, the maximum number of people were being reached in the most cost-effective way. The provision is based on the premise that the objective is to ensure that information gets to everyone, and it certainly does not open up the option of it going only to people who can be reached cost effectively. That is the real danger of the amendment.

Gary Streeter (Conservative, South West Devon)

I agree with the main thrust of the Minister's argument, but I have a question about the drafting of subsection (5). Why did the Government use the word ''secure'', as in what

''the Commission think is most likely to secure . . . that the information''?

Would it not be more normal to use the word ''ensure''? That again suggests that the drafting has not been properly thought through.

Nick Raynsford (Labour, Greenwich and Woolwich)

I have great respect for the hon. Gentleman, who has far more legal expertise than I have, but several other words could have been used instead of ''ensure''—''achieved'', for example. We employ parliamentary draftsmen as professionals to advise us on the best way of expressing matters. I have no reason to doubt the intelligibility or effectiveness of the wording of the subsection, which essentially says that the commission has to act in a way that is

''most likely to secure . . . that the information comes to the notice of all persons entitled to vote''.

Whether that would be better expressed by using the words ''ensure'' or ''achieve'' is a second-order issue. As long as the subsection's purpose is comprehensible and clear, I am satisfied with its wording.

If I may, I shall return to the other question that the hon. Member for South-West Devon asked about wording when we reach the clause stand part debate, because otherwise I should stray beyond the ambit of this group of amendments.

For my final remarks, I take a little inspiration from our surroundings. We are debating beneath a large picture of King Alfred inciting the Saxons to prevent the landing of the Danes. I am sure that Alfred had to husband his limited resources and operate in a cost-effective way to achieve the best effect. However, I

very much doubt whether his advice to the Saxons was, ''Now then, chaps, you've got to get as many of those Danes acquainted with your swords as is cost-effectively possible.'' I would wager that he actually said, ''We're going to get them all, and we'll do it in the most cost-effective way.'' That is my analogy. We want to achieve the maximum effect and to do so by using language that everyone understands.

Amendment No. 34 would, in the absence of designated yes and no campaigns, put an upper limit on what the commission could spend on providing information to voters on the arguments for and against the referendum question. As a limit it uses the figure level of grants that the commission would pay to the yes and no campaigns if they had been designated. By doing so, the amendment ignores other forms of assistance, additional to the grants, that will be available to designated organisations: for example, and most importantly, the commission will meet the cost of a free mailing to all referendum addresses. In the absence of designated campaigns, the commission might well decide that a mailing was the most cost-effective way of informing voters of the arguments. Designated organisations will, of course, be able spend more than the grant that they receive from the commission.

Philip Hammond (Conservative, Runnymede and Weybridge)

I accept the Minister's point about freepost, and that that makes the amendment defective, but I do not accept that the designated campaigns would raise money privately. The point of the amendment is to ensure that the public purse is not hit because there is too little public interest for an organisation to be designated. Will the Minister say whether he would favour the amendment's intentions if it were correctly drafted and took into account the non-cash benefits that will go to a designated campaign?

Nick Raynsford (Labour, Greenwich and Woolwich)

I am entirely sympathetic to the hon. Gentleman's objective, but the amendment, even it were redrafted, would not necessarily help. The overall limit is a national one. In the case of regional referendums, it is likely that we shall be talking about lesser figures because of the smaller areas involved.

Philip Hammond (Conservative, Runnymede and Weybridge)

Will the Minister give way?

Nick Raynsford (Labour, Greenwich and Woolwich)

I shall give way in a moment. I am trying to answer the hon. Gentleman's earlier question.

I am not sure that referring to the overall limit set in the PPER Act, as the amendment does, achieves the objective that the hon. Gentleman's wants. It complicates things unduly to speculate on the amount that might be appropriate in the case of any individual regional referendum.

Philip Hammond (Conservative, Runnymede and Weybridge)

The Minister's point is taken but, as he knows, the Opposition have tabled amendments, which are not grouped with this one, that seek to address precisely that issue by prorating the limits in the PPER Act to deal with the regional question. His point is therefore recognised elsewhere.

I am concerned that the Minister recognises the principle that the public purse should not spend more

because organisations have not been designated than it would do if they had been.

Nick Raynsford (Labour, Greenwich and Woolwich)

We entirely accept the principle that the public purse should not take a hit as a result of the non-designation of yes and no campaigns. We think that it is likely that those campaigns will raise money privately, but we believe that it is right that the Electoral Commission has a degree of discretion over reaching a decision on what is appropriate, and in particular over supporting non-grant items such as freepost, which the hon. Gentleman conceded could be appropriate. For all those reasons, a statutory limit is not necessary.

As my hon. Friend the Under-Secretary has made clear, the Electoral Commission is subject to the Speaker's Committee, on which I sit. From my experience of its meetings, the accounts and estimates that are submitted by the commission are scrutinised thoroughly and rigorously by the Committee, which, in turn, reports to the House. Proper safeguards are in place, and it is right that the commission should have a degree of discretion over how it uses its powers. I remind Members that those are only fall-back powers to be used in the not-altogether-likely event of there not being designated yes and no campaigns. I think that we have been making a bit of a mountain out of a molehill and I urge the hon. Member for Runnymede and Weybridge to withdraw the amendment.

Philip Hammond (Conservative, Runnymede and Weybridge)

I do not think that we have been making a mountain out of a molehill: there are real issues to address. The Minister ought to take our concerns seriously. I watched the Minister gazing at the picture behind your head, Mr. Benton, during our last sitting. I wondered what inspiration he was drawing from it, and now I know. I suspect that in terms of adhering to the strict letter of the statute, King Alfred might have had a little more flexibility in his interpretation of the rule of law than I would hope even the Government expect to have. He certainly would have been highly resistant to the concept of judicial review of any such interpretation.

Gary Streeter (Conservative, South West Devon)

Or the euro.

Philip Hammond (Conservative, Runnymede and Weybridge)

My hon. Friend raises a completely different point.

In response to what the Minister said about the proposed amendments to subsection (5), I simply do not agree. There is not a millimetre of difference between us about the intended outcome. The debate concerns whether the Bill actually says what the Minister thinks it does. We could continue in this way ad nauseam, but to put it to bed concisely it seems to me that the phrase

''the means the Commission think is most likely to secure (in the most cost-effective way) that the information comes to the notice of all persons''

is not the same as the means that the commission thinks is most likely to secure that the information comes in a cost-effective way to the notice of all persons. It is the latter that the Minister is describing when he sets out what he thinks will happen in practice. The Bill simply does not say that. I am clearly not going to be able to persuade him of that in this forum.

Call me paranoid, but I suspect that that might be in no small part due to the fact that the right hon. Gentleman has not come into the Room with an open mind, wishing to consider the arguments. However, I live in hope, bolstered by experience of other Standing Committees, that having raised a point that is robustly rejected by Ministers, they go away—perhaps gaze at a particularly inspiring painting—and come up with a different thought on the issue. I suspect that he may not find the picture on the other wall inspiring enough for his purposes.

I am not going to press the matter to a Division, but I hope that the right hon. Gentleman will think about it, and consider whether he agrees that there is a problem with the clause. I have taken no outside advice, but I will ask counsel for an opinion as to whether the wording does what the Minister thinks, or what I think. Perhaps we can have an informal discussion about that before the Bill reaches Report.

Concerning amendment No. 34 and public spending, I am glad that the Minister does not envisage larger-scale public spending by the Electoral Commission when acting in its default capacity when no organisations have been designated. Without wanting to sound paranoid, however, I would say to the Minister that there would be a considerable incentive for the Government to ensure the maximum possible turnout in a referendum. The Government will have a huge amount of egg all over their face if the turnout is very low. As the Minister conceded, if there is an extremely low turnout in a referendum delivering a yes vote, the Secretary of State will be in very difficult position. The Government will want to do everything in their power to maximise the vote. I would prefer to see some limitation in the Bill on the money that could be spent by the commission if it is put into that default situation. It may not be in the first referendums that are called, but if the Government proceed unwisely beyond the first one or two, they may find that there is less interest.

It being One o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Four o'clock.