National Assembly for Wales (Representation of the People) Order 2007

My Lords, we are grateful to the Minister for setting out the main provisions of the order. It is a large and complex order, which contains provisions resulting from the Government of Wales Acts 1998 and 2006, the Electoral Administration Act and related subordinate legislation. I have a number of questions and concerns. It would be helpful if the Minister could comment on them in his winding-up speech. The order is an A to Z of the electoral process for Welsh Assembly elections. A great deal of commendable work has clearly gone into its preparation. I am glad to note that it has been cleared by the Joint Committee on Statutory Instruments at somewhat short notice. It will apply to the coming election in May and will, effectively, be the bible for candidates and agents contesting that election and subsequent Assembly elections. It will provide guidance on the whole election process, including voting, campaigning and the conduct of legal challenges, and includes some welcome novel features, to which the Minister has just referred. It is a very important document and it is very important that its provisions should be politically impartial and correct. I am bound to say that I was taken aback when I saw the 277 pages that comprise the order. It contains some 80 pages of detailed articles, followed by 10 even more detailed schedules. It is by the far the largest statutory instrument that I have ever come across and it could easily be mistaken for a major piece of primary legislation. The Explanatory Notes acknowledge in paragraph 4.4 the complexity of the changes that the SI introduces, and that those concerned with its practical implementation will have their work cut out to meet the challenges it poses. Nevertheless, the parliamentary scrutiny of this complex order is being rushed through both Houses in double-quick time. Unlike primary legislation, an SI cannot be amended and so, whatever fault we may find, it cannot be corrected. I am not sure that the Government have power to correct any defect that we notice. The intention is for the order to come into force at the beginning of February so that preparations can be made for the elections in May. Why has the order arrived in the House just a week before this deadline? Both the Government of Wales Act and the Electoral Administration Act received Royal Assent in July last year. Why was this order not presented before the House sooner? Does the Minister agree that the order and its implementation are running to a very tight schedule? This point is particularly relevant when we consider the details relating to the process for securing a postal vote in Schedule 2. Under this, registration officers will contact existing postal voters to request personal identifiers; namely, date of birth and signature. This information will have to be provided within 42 days. Failure to do so within this time will result in the voter losing his or her entitlement to vote. I received a form and provided identifiers to secure my postal vote for Westminster elections more than a week ago. I have also received a letter from Conwy Council at home in north Wales, but that letter and the council’s action in seeking my identifiers did not result from the passage of this order. The England order came into effect on 1 January, so it looks as if we are running about a month late in Wales. Does the Minister agree that we are short on time? I hope that preparations for the delivery of letters requesting personal identifiers are already well under way and that the timetable outlined in Schedule 2 for requiring personal identifiers from existing absent voters can be adhered to. The Explanatory Memorandum which accompanies the order comments: "““The Government recognises that there may be a risk that some existing postal or proxy voters will not respond and will lose their entitlement to vote by post or proxy””." I recognise that attempts have been made to minimise this risk by providing for a reminder letter to be sent within 21 days, but does the Minister agree that this is a very serious issue and that postal voters must not be discouraged? Turn-out in elections is already low. Turn-out at the 2003 Assembly election fell to 38 per cent, down from 46 per cent in 1999. That is worryingly low. We must make every effort to encourage people to use their democratic right to vote, but I fear that the process outlined in the order may result in a further fall in turn-out. With regard to checking the validity of postal votes, I fully appreciate the need to tackle election fraud, particularly after the scandals that have occurred during local elections in Birmingham, Blackburn and elsewhere. According to an article in last Sunday’s edition of the Sunday Times, there is more fraud of this kind than many of us thought. Introducing tougher checks on postal votes is therefore to be commended, but why have the Government got into a situation where these checks have to be made within such a tight time schedule? With regard to checking the validity of returned postal votes, there will be a requirement for returning officers to check not less than 20 per cent of postal votes cast. What is a returning officer required to do if a proportion of the 20 per cent that he checks is not valid? At what stage does a full check kick in? The order implements the controversial provision incorporated in last year's Government of Wales Act that candidates in Assembly elections must stand as constituency or electoral region candidates, but cannot stand as both. It is generally held that this favours and protects the current sitting constituency members, most of whom belong to the party opposite. The order shows clearly that this decision has implications for the electoral expenses regime, which provides for different and variable amounts of expenditure to be permitted to constituency and regional candidates. This is set out in Articles 44, 46 and 47, on pages 35 to 37 inclusive, of the order. The amounts are lower for constituency candidates, which suggests that it is cheaper to run as a constituency candidate than as a regional candidate. I do not think that I am alone in finding this expenses regime confusing, not least the suggestion that a constituency candidate at an election to fill a casual vacancy may spend up to £100,000. That is in Article 47. I return to the late timing of the order. Rushing through such changes often leads to unintended consequences. For example, the requirement for electors to sign for their ballot paper is not now being introduced in England before this year's local elections. This is due to the fact, I am told, that someone discovered that there was no legislation to deal with what would happen if an elector refused to sign: the elector could still demand a ballot paper. Is that true? What is the position so far as this order and Wales are concerned? Paragraph 7.34 of the Explanatory Memorandum contains a reference to electors signing for their ballot paper, but I cannot find a reference to it in the SI. That is a mystery. I hope that the Minister can clear it up, but it is probably too much to expect him to do so off the cuff. If he cannot do it now, I hope that he will write to me. I reiterate my concern that such an important and complex order needs to be closely scrutinised, and our current procedure, which does not allow amendment, is hardly appropriate. The Government of Wales Act brings into effect the formal separation between the executive and the legislative arms of the Assembly, resulting in most of the statutory functions that are currently exercised by the Assembly becoming the responsibility of the Assembly Ministers. Ministers must therefore take on the detailed implementation of this order. It is vital that they do so fairly and impartially to all electors and candidates, whatever political party they support.