My Lords, Amendment 71, in my name and that of my noble friend Lord Wallace of Saltaire, relates to the implementation of Clause 13, which deals with the qualification for voting arrangements for overseas voters. It is my contention that this part of the Bill is technically flawed and, as drafted, will produce some strange and surely unintended consequences.
We believe it essential that these are overcome before it is brought into force, and doing that needs some serious thought, proper consultation and the preparation of guidelines and advice.
I raised some of my concerns in Committee, where the noble Baroness, Lady Scott, undertook to write to me. On 6 April, the morning of Report, I received a letter from the noble Baroness which basically said on the two issues I raised: “Well, it’s okay; let’s just see how it goes”. I will deal with those two points first, but I shall come to others despite the lateness of the hour and where we are in the proceedings.
The first issue I raised in Committee, which was addressed to some extent by her letter, was the extremely loose definition of who can qualify to go on the overseas register of voters. Clearly and unambiguously, an individual must be a British citizen, but what else do they have to be to get on the register? The clause says they must have been previously resident in the United Kingdom. Nothing is specified about for how long or at what age. I will again mention the case I raised in Committee: a British couple make a touch-and-go visit back from Ghana, during which their baby daughter is born and following which they emigrate to Switzerland. In due course, at the age of 18, that baby can claim an overseas voting right, never having been on a UK register and never having been eligible to be on one, because they were not 18 before they left the United Kingdom.
The Minister’s answer was that electoral registration officers were the best people to judge whether a person claiming the right to join the overseas register had in fact acquired a UK residential qualification by virtue of spending, for instance, a fortnight in a maternity unit in Hounslow, or not. I gently suggest to the Minister that it might be better to establish a more formal and regularised decision-making process, one less prone to happenstance and the personal inclinations of electoral registration officers. There is reference in the Bill to guidance being produced, although it does not say that it will tackle that issue. Indeed, the letter from the noble Baroness does not suggest for a moment that such advice will be made available. Noble Lords will see in the amendment we have tabled that that is one of the matters we say needs to be considered and resolved before this section comes into force.
In the same debate, the noble Baroness, Lady Scott, said that the aim of this proposal was that those on the overseas register would be in exactly the same position as those on the UK register of voters. I take that to mean that, apart from anything else, they will be free to nominate someone to be a candidate for a public election in the constituency in which they are registered. No one seems to know whether that includes nominating for a local government election, or if there is a mechanism for deciding in which ward they could validly nominate.
Clearly, if you were on the overseas list by virtue of appearing on a previous electoral register, that matter is settled because you would have appeared for a particular locality, which will place you in a ward and make you eligible to nominate somebody for it if you wish. However, for someone with a residential qualification, it is perhaps less clear-cut whether ward B in the maternity hospital at Hounslow—where you
happen to have been born when your parents came off the aeroplane—is or is not in a particular ward. That is a small detail compared to some of the other matters I will raise, but it certainly indicates that there are matters which are not yet clearly resolved.
So, it is clear that if a person can nominate somebody, whatever they can nominate them for—whether it is restricted to parliamentary elections because it is on a constituency basis, or whether they are located sufficiently well to nominate somebody for a local government ward—they must also be free to stand for election as a candidate themselves in that election if they should choose. So far, so equal. The aim of making sure that overseas voters have exactly the same rights and duties as electors in this country is achieved.
But surely it ought also to mean that if convicted of an offence—let us say death by dangerous driving—that results in a sentence of more than six months, they should be disqualified from standing and if elected at the time, they should lose office, just as someone on the UK register would. I remind the Minister that the Government strongly resisted efforts by my noble friend Lord Thomas of Gresford to permit some categories of prisoners to vote. The Government are completely hostile to the view that people should have a vote in prison, never mind that they might stand or even be elected or retain their office if in prison. However, the answer that the noble Baroness gave me in that letter was that being in a foreign prison was not in fact a bar to standing for public office in the UK; she made the perfectly fair point that the UK Government—and by extension, electoral returning officers—would have no knowledge of foreign court decisions and that in any case, in many jurisdictions, imprisonment could result from acts that were legal in the United Kingdom.
That is a pretty good reply—well drafted and crafted—but it does not really bear examination, because there are a number of things which candidates cannot be: they cannot be bankrupts, and they cannot be suffering from a mental illness that requires their detention. But those matters are simply covered by a candidate’s declaration: you tick a box to say that you are not bankrupt and that you are not detained. The Government and the electoral registration officer do not have the means of checking that either. So, these matters could perfectly well be dealt with by having an additional question on the declaration at nomination stage. It would have exactly the same strength and capacity as a tick in a box to say, “I am not bankrupt, and I am not currently detained under the Mental Health Act.”
The argument that it is impossible to monitor whether an overseas elector is in prison and therefore should or should not be able to nominate somebody—or indeed continue to hold office having been previously elected—is therefore mistaken. At the moment, the Government seem to accept that there is nothing they can do about it. It seems to me obvious that a simple modification to the declaration form would solve the problem and, of course, falsification of the declaration form is an election offence. So, such an additional, suitably worded declaration by an overseas voter would be open to exactly the same challenges as the standard declaration form. In most cases, the mere existence of such a declaration would be a sufficient deterrent and any
that got through would likely soon be weeded out by opponents and certainly would not need extensive investigation by the Government.
Surely the Government, with their fetish of preventing prisoners from voting, are not going to allow overseas voters not only to vote but to be eligible to stand while they are serving a sentence in a foreign prison for what would be an imprisonable offence in this country—I mentioned dangerous driving.
It might be asked what category of voter would benefit from this; well, there might be a few “McMafia” figures languishing in a Spanish prison, I suppose. All that could be dealt with by an amended declaration form, which could be produced in about 10 minutes with a word processor. But there is no provision for such a thing in Clause 13, and the Government seem to have given up in the attempt. So far, so wrong.
Let us consider the case of a councillor elected to a UK local authority—say, the London borough of Richmond or the Wiltshire county authority—who then moves to Dover. When the new register is published, they lose their vote in their old area and, lacking another qualification, have to vacate their office. I ask noble Lords to consider what would have happened if that councillor had moved a further 30 miles east, to Calais. They could of course then ask to be put on the register of overseas voters for their former area. Long before the new register comes into force, they would be qualified by virtue of that to continue in office and indeed to re-stand in due course. Do the Minister and her advisers know that Clause 13 produces the absurd result that such a councillor moving to Dover is disqualified but one moving to Calais is not?
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The Minister may say that all these things are absurdly unlikely. But the touchdown baby is a real case, although she resided in the UK for about six months—that was 50 years ago. The case of relocating councillors is far from unknown, although most of them move not to Calais but to the Algarve and other sunny parts of Europe. My point is that Clause 13 is hopelessly deficient in setting out the Government’s limitations and intentions, and it urgently needs work before implementation can begin. My noble friend Lord Wallace will make the point that the actual process of issuing and collecting votes is so unfit for purpose that it raises serious concerns that, actually, the whole point of the mechanism is not to increase democratic participation by British citizens overseas but rather to increase their financial participation.
It may be that that the Government are not going to take the question of the mechanics of voting very seriously—I hope that they will, and I know that my noble friend will spell that out very clearly. But, even if they do not take his objections seriously, surely no Conservative Minister can seriously leave unaltered and unexamined a provision that lets convicted prisoners in French jails stand for election to the UK Parliament or that lets absentee councillors remain in office, provided that they remain out of the United Kingdom. Putting that proposition in front of this House makes the Government a laughing stock. But that is what Clause 13 permits, and it is why I urge the Government to
accept our amendment to take time, take stock and produce a process that is genuinely fit for purpose. I beg to move.