Parliamentary Voting System and Constituencies Bill
(13 years, 11 months ago)
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22:38 - Division on Amendment 39A - Ayes: 96 / Noes: 38 - Amendment 39A agreed.
Lord Foulkes of Cumnock
(c) citizens of other countries which are members of the European Union, resident in the United Kingdom”
Lord Foulkes of Cumnock
My Lords, I was going to say that it is a good job that the Government Whips Office is not in charge of snow clearing, but I thought it might not go down well with the noble Baroness, Lady Anelay, so I will certainly not say anything.
The Minister of State, Ministry of Justice (Lord McNally)
Someone from Edinburgh is starting to make jokes about snow clearing.
Lord Foulkes of Cumnock
The noble Lord is absolutely right because the Minister who had to resign did not come from Edinburgh; he was from the north-east. He used to drive Alex Salmond because he was his chauffeur, which is how he got the job as a Minister. If noble Lords want a hint, that is not the best way to choose a transport Minister, by the way. However, that has absolutely nothing to do with Amendment 36A.
I am glad to see the noble Lord, Lord Tyler, in his place. In the previous debate the noble Lord was deeply concerned about confusion. He did not want those 16 and 17 year-olds to turn up at polling stations and be confused or cause confusion because they would not be able to vote in anything other than the referendum. I could see his deep and intense worry about confusion. That is why this amendment is very helpful to the coalition Government.
As I said on a previous amendment, one of the problems with the Bill is that it is going to result in confusion not only in campaigning, but in this context also in confusion at the polling station because we will have two separate franchises. One will be the local government franchise which, as the noble and learned Lord, Lord Wallace of Tankerness, knows only too well, is used for the Scottish Parliament, and the parliamentary franchise, with one alteration at the moment, which will be used for the referendum. How do we deal with the confusion at polling stations? I suggested in an earlier amendment that we should not have the elections on the same day. We discussed that at length, but it was not accepted by the Government. I went on to examine the variations in the franchises to see whether something could be done to bring them together so that we would have one franchise. That would be much simpler for polling officers.
Noble Lords will recall from previous debates and by looking at the Bill in detail that in some cases polling officers can opt for two registers, in which case as the different franchises come in they will have to be checked and then ticked off on one or the other of the registers, or they can opt for a single register for the two franchises, in which case they would have to mark on the register which ballot papers the elector receives. They will be given one ballot paper for the referendum, or two ballot papers for the election, or three ballot papers for the election and the referendum. I can already see the noble Lord, Lord Rennard, realising how confusing it is going to be and imagining himself sitting as a polling officer and carrying that out. It would be much easier if we conflated the franchises so that they were just one. Although there are other arguments in favour of it, that was the basis for this amendment.
If we look at the variations, first, overseas voters are able to vote in the parliamentary elections—in other words, they would be able to vote in the referendum—but not in the local government election. However, I do not imagine that there will be many people coming from overseas seeking to vote and if there are, they are more likely to have postal votes. I would not have thought that they would actually turn up at the polling stations. The overseas voters, who are not able to vote in the Scottish Parliament elections, should be of no great concern to us as far as the conduct at the polling station is concerned.
The second category, with which noble Lords will find they have a complete understanding, is Peers. Peers are not able to vote in the parliamentary elections so they would not be able to vote in the referendum. Yet the Government, in their wisdom, have included a special arrangement for us Peers to vote, exceptionally, in this referendum. That is included in another amendment, so Peers are dealt with.
Those who remain are citizens of European Union countries,
“resident in the United Kingdom”.
They all vote in the Scottish Parliament elections, as the noble and learned Lord, Lord Wallace, will also know. We get Poles, French and Germans who are living and working in Scotland—and paying UK taxes—and who will turn up and vote in the Scottish Parliament elections. Yet they would not be able to vote in the referendum unless my amendment is agreed today. If we do that, it will deal with the third category which means that we will then have a combined register, by conflating the two franchises, and that things will be much easier for the polling officers.
There is another logical part to it. We were talking about the 16 year-olds and how they were paying taxes at 16. These European citizens who are living in Scotland, Wales and the rest of the United Kingdom and who are resident and working here will also be paying taxes in the United Kingdom. They will be paying income tax if they are working, council tax for the house that they live in, corporation tax if they have set up a company and value added tax in the shops when they buy things. In a previous debate it was said that there should be no taxation without representation, and yet all these European citizens are paying tax and are able to vote in the local government elections, in the Scottish Parliament and Welsh Assembly elections and in the European elections but not in the Westminster elections, and now not in the referendum.
Lord McAvoy
My noble friend is advocating that European Union citizens who are resident here should vote in referendums in the United Kingdom. Can he tell me of any reciprocal arrangements where UK citizens can vote in any referendum being held in another EU country?
Lord Foulkes of Cumnock
Yes, I can. Ireland is a good example of a country in the European Union.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
But we always have reciprocal arrangements with Ireland.
Lord Foulkes of Cumnock
Indeed, but that is just one example; I was asked for only one example and I gave it to my noble friend. I knew what he was getting at but I was not going to fall into that trap. Maybe he would like to come back.
Lord McAvoy
Can my noble friend name two EU countries that allow UK citizens to vote in their referendums?
Lord Foulkes of Cumnock
I would need notice of that question.
I understand the import of what my noble friend says, but this has to start somewhere. We are a pioneering country—why should we not start with this? Okay, it is a pro-European kind of amendment, and I know that not all my noble friends are as enthusiastic about the European Union as I am, but it is a good way to start.
The mother of two of my grandchildren is French; I must declare an interest in relation to that. She has now moved to Scotland. To all intents and purposes she is a citizen of Scotland and the UK, although she retains her French citizenship. There must be so many people like that. Think of the Poles who came over. Some of them fought for us in the Second World War—there are not many of them left—but some are still not British citizens. There are other Poles who have come over and, while some have gone back, some of them have now made their homes in the United Kingdom. Some came over to work in the mines in Ayrshire and in other parts of the United Kingdom. Some have retained their citizenship of other European countries but, to all intents and purposes, they are now as much United Kingdom citizens as the rest of us. They are paying all their taxes, so should they not vote? There is a strong argument there, as well as the practical arguments about conflating the franchise.
My noble friend Lord Rooker described his earlier amendment as a “lifeboat”. We provided that lifeboat for the coalition. The coalition has not jumped on to that lifeboat yet but it is waiting, bobbing alongside the coalition liner, ready to provide some help if 5 May proves difficult. This amendment is not so much a lifeboat as a lifebelt for my noble friend—he is still my noble friend—Lord McNally. If he wishes to take it, he can make life a lot easier for the polling officers. He can go back to his colleagues in the other place and say, “We’ve improved the Bill in this way. We’ve made it easier for people to vote. We’ve made it less cumbersome and less confusing. That’s one argument that that fellow Foulkes can no longer keep on pursuing”. I hope that the Minister will see this as a lifebelt and grasp it with both hands.
Lord Falconer of Thoroton
The amendment of my noble friend Lord Foulkes identifies a problem that arises from the Government’s plan to combine the date of the referendum with already scheduled polls in the devolved regions and local authority areas across the United Kingdom. Citizens of other European Union member states who are resident in the Untied Kingdom can vote in local government elections. A French citizen living in Leicester will be able to cast their vote in the unitary authority elections on 5 May. An Italian citizen who lives in Newcastle upon Tyne will be able to do the same, as will a Spaniard in west Somerset.
Those who are resident in Scotland and Wales, by virtue of their residency and not their citizenship, may vote in either the Scottish Parliament or the National Assembly for Wales elections. Consequently, a German citizen who lives in Cardiff will be able to vote for his local AM in May, as a Belgian in Edinburgh will be able to vote for her local MSP. However, when any of these people go to the polls next May, they will not be eligible to cast a vote in the Government’s proposed referendum. The consequence, as the noble Lord, Lord Tyler, so emphatically and eye-poppingly enthusiastically said before supper, of having different electorates for different votes would be terrible. This is what my noble friend Lord Foulkes of Cumnock has indicated is the position.
Clause 2(1)(a) of the Parliamentary Voting System and Constituencies Bill states:
“Those who are entitled to vote in the referendum are … the persons who, on the date of the referendum, would be entitled to vote as electors at a parliamentary election in any constituency”.
This explicitly does not include citizens of other EU member states who are resident in the UK. As my noble friend has argued, there is potential here for administrative confusion. The polling stations in the 80 per cent of the country that will be combining polls on 5 May will be administering multiple franchises. There will need to be two separate lists of eligible voters: one for the referendum and one for the local and devolved elections. This is the argument behind my noble friend’s amendment. I see that the confusion argument has force but I would deal with it differently. I would deal with it on the basis that the answer is not to combine, but to move the referendum to a date other than 5 November.
Lord Falconer of Thoroton
Sorry, it felt like blowing up Parliament. I apologise for the confusion. My noble friend Lord Rooker’s amendment, which was agreed to in this House, provides the coalition with the opportunity to move the date, which it can still take.
My conclusion on behalf of the Front Bench is that we should move the referendum date, not change the franchise for the referendum. If citizens of other EU member states who are resident in the UK cannot vote in UK parliamentary elections, which is the current position, why should they be given a say in which electoral system is to be used in such elections? There is even an argument that, on a question that goes to the heart of the British constitution, citizens of other EU member states should not be able to express a view.
Furthermore, on the basis of reciprocity, we should not allow citizens of other EU states to vote to influence our parliamentary elections, since British citizens are not—as far as I am aware—permitted to take part in elections in any other European Union country apart from Ireland. The reason why Ireland and the UK have reciprocal arrangements has absolutely nothing to do with the European Union; it is to do with history that stretches way back before the EU.
There is an anomaly here but it can be dealt with in the way that has been suggested. It really pains me to disagree with my noble friend Lord Foulkes of Cumnock. We support the same football team. My son was here earlier, wearing the Heart of Midlothian colours. That is why I feel bad about not supporting my noble friend, but I feel unable to do so in relation to this amendment.
Lord McNally
My Lords, I cannot do better than that eloquent and absolutely lacerating summing up by the noble and learned Lord, Lord Falconer. I hope that the noble Lord, Lord Foulkes, will withdraw this amendment.
Lord Foulkes of Cumnock
Does that endorsement of what my noble and learned friend Lord Falconer said include an acceptance to move the date of the referendum, which my noble and learned friend advocated?
Lord McNally
A kindly thought, but no. As noble Lords know, when Ministers receive research it comes with a back paper. Much as the noble and learned Lord, Lord Falconer, said, the document states:
“There is no reason why EU citizens should be allowed to express their views in the referendum on the preferred voting system for an election in which they are not entitled to participate”.
The document shows you what a warm-hearted lot our civil servants are as it goes on to say:
“It is possible that the amendment is a probing one seeking to provoke a debate on the voting rights of EU citizens resident in the UK for the purpose of parliamentary elections”.
That shows how kindly they think of the noble Lord, Lord Foulkes, and his intentions in putting down the amendment.
Lord Rooker
I say to the noble Lord that that was not the reason at all; it was to give the Electoral Commission the supreme opportunity to prepare all the explanatory materials on the alternative vote system in the Bill to explain it to all the other people who use modern, democratic PR systems in Europe as they would never understand the AV system being proposed.
Lord McNally
The noble Lord, Lord Rooker, goes too far. The Government’s resistance to this amendment shows that they are not willing to steal a march or twist the electorate as undoubtedly the people who would be enfranchised are perfectly used to AV and would see its merits and are perfectly used to coalitions and see their merits. Therefore, we resist the amendment as a great act of altruism as we are refusing what would undoubtedly be a massive yes vote on the part of those who would be enfranchised by the amendment proposed by the noble Lord, Lord Foulkes. We do not want that. As I have said before, we want the Bill to be purely and simply about fair votes and fair constituencies. Having heard his noble and learned friend’s absolutely marvellous explanation of why this is a lousy amendment, I hope that the noble Lord will withdraw it.
Lord Foulkes of Cumnock
I am particularly grateful to my noble and learned friend Lord Falconer—my fellow Hearts supporter—for his comments. When my noble friend Lord Sewel came into the Chamber I was reminded of last Saturday afternoon when Heart of Midlothian scored five goals against Aberdeen. But, seriously, the noble Lord, Lord McNally, did not accept the consequences of the summing-up of the noble and learned Lord, Lord Falconer. As I understand it, the noble and learned Lord made it absolutely clear that the alternative to allowing European citizens to vote was to move the referendum to another date. That is my preference and the preference of most people that I have heard contribute to this debate so far. If the noble Lord, Lord McNally, accepted that—that was the lifebelt that the noble Lord, Lord Rooker, offered on a previous occasion—we would welcome it.
However, some of my proposals tend to be a bit ahead of the times. In 1982, I introduced a Private Member’s Bill in the House of Commons to outlaw smoking in public places. I think that it got about six votes. Now, all these years later, smoking in public places is prohibited. In 1983, I introduced a measure against age discrimination. Again, I got nowhere, but all these decades later we have such a measure on the statute book. Therefore, I have hope for the future. However, on the basis that this amendment may be a little ahead of the times, I accept the advice of the noble and learned Lord, Lord Falconer, to withdraw it and come back to it on another occasion.
Lord Foulkes of Cumnock
“( ) The Electoral Commission shall appoint a sub-committee including representatives from the 3 main UK parties and one chosen by the other parties collectively, who shall have experience of referenda and have previously held elected office, to exercise all its powers and functions in relation to the referendum.”
Lord Foulkes of Cumnock
On the basis of representations that I have received from the Electoral Commission and the changes that have recently taken place in relation to the constitution of the Electoral Commission, I now do not wish to move the amendment.
Lord Foulkes of Cumnock
Lord Foulkes of Cumnock
I had expected that some other Members might have spoken against clause stand part, which is why I was not immediately ready. On page 2, line 39, it is stated:
“The polls for the referendum and the Scottish parliamentary general election in 2011 are to be taken together”.
I am proposing that the subsection be deleted. I say to the noble Lord, Lord McNally, that this is his solution, because we have just been discussing the confusion that will take place in a Scottish parliamentary election. I have spoken on this matter, but there are a number of areas of confusion; I will not go on at length about them, but will make a brief reprise of what I said previously. Two areas of confusion are likely to arise. The first is confusion in campaigning and the other, which relates to one of the solutions that I have just put forward—extending the franchise to European citizens—is confusion at polling.
On the confusion in campaigning, I do not think that the Liberal Democrat Members in particular understood the import of what was said in the previous debate. As to running a cross-party campaign, I know that the noble Lord, Lord Rennard, and others, in particular the noble Lord, Lord Maclennan, have been involved. He and I were hand in hand together on the campaign for Britain to remain a member of the European Union—he was in the Labour Party then. However, we worked together with Conservatives such as Malcolm Rifkind, members of the SNP, and other parties—particularly the Liberals. I remember campaigning for our membership on an all-party and cross-party basis. We were able to do that without any problems or difficulties, because there was no election taking place on the same day. We appeared on the same platform. John P Mackintosh was on the same platform as Malcolm Rifkind. That did not create any problems, because people understood that all that was being discussed was whether Britain should remain part of the European Union. They did not say, “It’s strange having a Tory and a Labour person on the same platform”, because they were not standing against each other in an election on the same day.
Imagine what will happen on 5 May next year if we have the elections for the Scottish Parliament and the referendum on the same day. As I have said on previous occasions, imagine campaigning with people of other parties. I chose the example of David McLetchie—a friend of mine who is a Conservative Member of the Scottish Parliament. Imagine if I said that I agreed with him that we should have first past the post and should not move to this awful system of alternative votes, but while we were going around Wester Hailes, in the Edinburgh Pentlands, people asked, “Are you supporting David McLetchie to be re-elected as the MSP?”. Of course the answer is, “No, I am campaigning for Ricky Henderson, the Labour candidate”. They would then say, “But why are you here with McLetchie?”. If I said, “Because we are campaigning in the referendum”, they would say, “But there is an election taking place”. That is how confusion arises.
As to expenditure, when you are campaigning, how can you easily differentiate between expenditure on the election and on the referendum? For example, I may use a loudspeaker system in campaigning for the Labour Party and then borrow it for a day to use in the no campaign for the referendum. How do you allocate the finances? In a later amendment there is a reference to party election broadcasts. At the moment it would be possible for the Liberal Democrats to have a party election broadcast not to say, “Vote Liberal Democrat in the election” but, “Vote yes in the referendum”. Unless we change it later, that is quite possible. Most Members here have taken part in an election of one kind or another, or one kind of cross-party referendum campaign or another, and know of the problems of having the two on the same day. So there will be confusion in campaigning.
I turn now to confusion within the polling booth. As I said, I tried to provide the noble Lord, Lord McNally, with a lifebelt to resolve this problem by bringing together the franchises and trying to introduce a single register, which would have made things easier. However, he chose not to take advantage of that lifebelt. Instead, he agreed with the noble and learned Lord, Lord Falconer, who summed up the debate on European citizens voting. The noble and learned Lord said specifically in his reply that he disagreed with the solution in my amendment about allowing European citizens to vote and thought that there was an easier and better way of doing it—and that was not to have the referendum on the same day as the local elections.
That is now quite possible because of the amendment of the noble Lord, Lord Rooker, which was passed by the House. It allows the Government to hold the referendum on any day between 5 May and 31 October and gives them the necessary flexibility. I shall not give away a confidence by saying who it was, but a Liberal Democrat Peer said to me, “George, I see the strength of your argument now as far as the Liberal Democrats are concerned”. In fact, he agreed that it would be better for the Liberal Democrats not to have the referendum on the same day as the elections because he believed that they would not get the same degree of support for AV. I could see his argument. When the elections in Scotland and Wales and the local government elections in England are taking place, the Labour Party and the Conservative Party will be pushing to get out their electorate to vote in the elections. They will turn out primarily for the elections and be predominantly in favour of first past the post. Therefore the AV support is likely to be at a minimum and the first past the post support at a maximum. However, if the referendum is held on a separate day it will be the real activists, the ones who want change, who will come out and vote for AV. The first past the post people will sit at home and think, “It will never change anyway” and wake up the next day to find that the activists in favour of AV have turned out. Without a threshold, there could be just a small 10 per cent turnout and the constitution would be changed.
Lord Maclennan of Rogart
It rather sounds as if the noble Lord is making a speech of no confidence in his own party leader. Surely that will remove all problems of dubiety about who is for and who is against, because he will get lots of publicity. Mr Ed Miliband has made it clear that he supports AV, which will surely overcome quite a lot of the problems put forward by the noble Lord.
Lord Foulkes of Cumnock
Of course, the support of Ed Miliband—and I have a great respect for him—will help the AV campaign. However, I do not think that it will help it as much as the wide range of support for the first-past-the-post campaign in the Labour Party, which has a whole galaxy of supporters. That still does not argue the case about the differential in the turnout. The Liberal Democrat that I mentioned was arguing from his point of view the fact that it would be for Liberal Democrats to have the referendum on its own so that they could concentrate on the change that was necessary and get the enthusiasts and activists to turn out.
I urge noble Lords to support the deletion of this clause. It is the first in a group of amendments that would have a similar effect in different areas and in different ways. The amendment would eliminate the probability, or certainty, of confusion of the electorate in the campaign and at the polling booths. If we do that, we will have produced a far better Bill than we received from the other place.
The Deputy Chairman of Committees (Baroness Fookes)
I point out to noble Lords that if this amendment were agreed, I could not call Amendment 39A by reason of pre-emption.
Lord Hamilton of Epsom
My Lords, I very much support the noble Lord, Lord Foulkes, on this amendment. I have always taken the view that we should be working overtime to ensure that the referendum vote on the alternate vote system is not held on the same day as the local elections. I have never really understood that anybody can argue that the two issues, as the noble Lord has pointed out, would be completely confused.
One thing that we have established on the debate that we have had on the alternate vote is that it is not just a simple change in how we carry out voting. It is incredibly complicated, and we need an extensive debate to clarify these issues. I am not saying that the British electorate are made up of people who are so extraordinarily thick that they do not understand. Let us face it—many of us in this House have been on a seriously steep learning curve as to what the alternate vote is about. When I came here, I thought that there was only one alternate vote; I find that in fact there are four different variations of the alternate vote. It is extremely complicated and a very major change in our constitution. It is a serious change in how we carry out our elections, and not something that should just be thrown in as a referendum at the same time as local elections. It is something that the country should debate and consider very seriously, because it will in perpetuity change how we hold elections in this country and change, also, the outcome of these elections.
I had great discussion with my noble friend Lord Tyler, who claimed rather interestingly that if we had the alternate vote, it would make what he described as a balanced Parliament—which I have always more pejoratively described as a hung Parliament—less likely. That is a very profound statement for my noble friend to have made, because he is actually saying that the Liberal Democrats are advocating an electoral system that will disadvantage them in general elections. That shows an altruism that I did not think existed in the Liberal Democrats. It has really opened my eyes. It has also changed where I come from, because the reason why I am trying to delay the alternate vote referendum is because I want to see the alternate vote soundly defeated. On the other hand, if the alternative vote system will make it less likely that we will end up with coalition Governments, I should be supporting it.
Lord Lipsey
My Lords, perhaps I might intervene as a supporter of AV. I agree with nearly every word that the noble Lord, Lord Hamilton, said. There is a slight Alice in Wonderland feel about today. I have popped in and out of the Chamber and on many occasions when I came in, I heard the noble Lord, Lord McNally, saying that this was a simple Bill. Every time I hear him say it, I look again at Clause 4—Clause 4 stand part is part of this grouping—and find so much legalistic rigmarole that, despite having many years of experience of parliamentary draftsmen, I find it extremely hard to comprehend. Given the compelling case that has just been made both by my noble friend and by the noble Lord, Lord Hamilton, it is very hard to understand why on earth the Government continue to want to hold the referendum on 5 May. I find that particularly hard to understand of my noble friend Lord McNally—I call him my noble friend because we have been friends for many years. Like me, he is in favour of a yes vote in the AV referendum. The Liberal Democrats, who seem to want this vote to be held on 5 May, are in favour of a yes vote in the referendum, but the one thing that will make it very difficult for proponents of AV to win that vote is to hold it on 5 May.
I have heard only one argument with any force that it could be to the advantage of AV campaigners to hold the referendum on 5 May and it is that turnout in Scotland and Wales will be higher on that date because there will be regional elections on the same day and that will help. However, that is conceptually ridiculous. Let us suppose that the Scots would be 10 per cent more likely to vote AV than people in the rest of the country, and let us suppose that, as a result of having the two elections on the same day, the turnout would be 10 per cent higher. If those two extraordinary assumptions were true, it would make a difference to the national vote of something like 0.1 per cent. Any advantage that might be gained from a higher turnover would be absolutely negligible in terms of the outcome of the referendum. However, why look into the crystal ball when you can read the book? We have YouGov polls, so we know what the level of support is in each part of the United Kingdom. Support in Scotland is precisely the same as that in England and more or less the same as that in Wales. Therefore, there is absolutely no reason for a differential turnout to favour those in support of the alternative vote system.
However, there is a major reason to suppose that it would be bad news for AV if we had the referendum on 5 May, and it is this. When it comes to the battle over the referendum, supporters of AV have one enormous advantage. Unlike in this House, where most active Members—I freely concede this—are opposed to AV, there is a network of supporters, most of them in the Labour Party or the Liberal Democrat party, who are prepared to work their socks off for a victory for AV on whichever day the referendum is held. They are networking and phone banking and so on. I doubt whether there is a similar organisation of people opposed to AV, although I am sure that a very sophisticated campaign will be run by the nice Mr Elliott who runs the TaxPayers’ Alliance, and I am sure that they have done very well to get him on their side. However, we will cast this huge potential advantage to the wind if we hold the referendum on 5 May. If you think that Liberal Democrats campaigning in a local election are going to be able to turn their attention from supporting their candidates, who are whipping them on, to manning the phone banks for AV, you are mistaken.
More powerfully—and I can say this with a great deal more authority—the idea that Labour supporters fighting Liberal Democrats up and down the country, condemning Nick Clegg for the disgraceful abandonment of his election pledge on tuition fees, and trying to eliminate the Liberal Democrats as a party in this country will at the same time on the side go out and hit the phones, saying “Would you mind voting for AV? It might help our little Lib Dem friends”, is a complete absurdity. The result is that, if the referendum is held on 5 May, we who are in favour of AV—and I do not claim, and never have claimed, that our task is an easy one—will have cast aside our greatest advantage and will have handed a greater chance of victory to those who would block what we are trying to do.
I can understand the Conservatives supporting that way forward and I can understand those on my own side who do not share my view about AV supporting that point of view. However, I was greatly cheered to hear the noble Lord, Lord Foulkes—whom I hugely admire and whose performance throughout our debates on this Bill has been so remarkable—cheering and nodding at some of the analytic remarks that I made, even if he would not necessarily support the conclusion to which they were directed. The noble Lord, Lord Strathclyde, too, could share the preference for 5 May. But I have to ask: what is the noble Lord, Lord McNally, up to? Does he not want to see the result for which he—like me—has worked for so many years? I am mystified by the coalition’s stance, purely because of the realpolitik involved; that leaves aside the whole argument that I have developed on other occasions about what I almost call the “immorality” of combining different sets of issues, including sub-national Parliaments, Assemblies, local government, a change in the voting system for national elections all on the one day, which is a cruelty to inflict on the willing but sometimes confused electorate, who although willing may be confused by such shenanigans.
I beg the noble Lord, Lord McNally to think again and to look at the analytic case both in terms of the result he wants and its merits. I know that as he is a good and clear thinking man, he will conclude, whatever he may say tonight, that the right thing is to abandon 5 May and to have an early but separate referendum so that the British people can concentrate on resolving this issue for the good of the nation.
Lord Campbell-Savours
My Lords, I do not want to detain the Committee but, until I read the Marshalled List, I was unaware of the issue that my noble friend Lord Foulkes of Cumnock was going to raise.
The more I think about it, the proposition in the Bill is utterly ludicrous. The Liberal Democrats must understand that the idea that we will have joint platforms either for or against the question being answered positively does not arise. The Liberal Democrats more than any other party should know of the bitterness that often exists at local level during campaigning. How is it possible to have a full, honest, open and participatory debate if the people at the heart of it are factionalised and arguing among themselves about the greater issue of who will be in Parliament and who will be on the local authority? I cannot understand the logic.
Who is driving this on? Where is all the pressure coming from? After four days of listening to these debates, have not Liberal Democrats and the coalition realised that there might be something wrong with the way in which we are proceeding, particularly when some of us are passionately in favour of electoral reform? We are worried that it will all go wrong. The only way forward, it seems to me, is for the parties in the coalition to sit down privately, without telling anyone, and to think through again whether there is a need to further amend the proposed legislation, perhaps even against the new timetable.
What is the pressure for the timetable? Why in the first year are we faced with a Bill for a five-year fixed-term Parliament? Why are we so preoccupied in this year one in getting through the legislation in this form? Can we not afford another 12 or 18 months? What will be lost by delaying and getting the question and the process right? We would then have a chance of a successful resolution. We are being stampeded into a decision. It is like a panic-based decision, which will result in it all coming apart. If it does not come apart, we will end up with the wrong system. The Conservative element of the coalition will be faced with an electoral system for which it will be held responsible historically. Why cannot the coalition just sit down for perhaps a matter of months to reconsider this part of the legislation with a view to coming back following the inquiry that a number of us have asked for, having decided on a proper system and process?
Lord Browne of Ladyton
My Lords, despite the lateness of the hour, I rise with some enthusiasm to support the amendment moved by my noble friend Lord Foulkes of Cumnock. I thought that he made a powerful case for why it is a mistake to have this referendum poll on the same date as the Scottish parliamentary elections. In doing so, he did not draw on nearly all the arguments that exist, as has been apparent from other contributions.
I am struck by the contribution of my noble friend Lord Campbell-Savours allied to the contribution of the noble Lord, Lord Hamilton. From the different perspectives of reform, I thought that they made complementary cases on why the Government should be persuaded to take more time over this process and to get it right. If we are to get a decision about the way in which we elect the House of Commons for a generation or more—or, indeed, for ever—it does not seem unreasonable to ask for time to think about the full implications of the decision that we are making and to test that even by discussion among parties or, as the noble Lord, Lord Campbell-Savours, suggests, among those who broadly favour reform. Furthermore, I thought that the analysis of my noble friend Lord Lipsey of the effect of the coalition’s proposal was deadly accurate.
I have been listening to debates in Committee on this issue and have been struck by the number of contributions supporting contemporaneous polls from people who, I have the sense, have not done much campaigning to encourage activists and electors to engage in polling. They may well have organised campaigns from the centre, but not out there in the streets as I have done time and again. It is challenging to try to encourage activists to go out with you often in quite inclement weather in Scotland, even at that time of the year, to knock on hundreds of doors, to spend hours and hours on doorsteps engaging with people and persuading them that they should come out during a particular window of opportunity. To ask people to do that and, at the same time, to support a campaign that involves them working with those whom they are campaigning against will be almost impossible. I know from the activists whom I have tried to engage and have worked with successfully on numerous occasions that that is a difficult thing to do. This should not be complicated any more than it needs to be.
I have already contributed to this debate and I do not propose to rehearse all the arguments that I made when the Committee considered this issue before, but I must say today that I have been reassured that not only did we win that argument—although we were unable to persuade the coalition Government to accept the consequences—but it seems that, subconsciously, we have persuaded more members of the coalition than we thought. For example, I heard the noble Lord, Lord Tyler, adopt exactly the argument that he opposed days ago and earlier today in his opposition to 16 and 17 year-olds having the vote. If he is not consciously aware that he has absorbed the argument, subconsciously his political acumen is telling him that there is something in it, because he repeated the argument.
Earlier, I suggested to the Committee that one reason why we should not have the Scottish Parliament elections and the referendum on the same day is that the London-centric media will dominate the debate and drown out the voices of Scottish politicians as they try to persuade people to engage with the issues that are important to them concerning who forms the Scottish Government for the next four years. I remember that argument being pooh-poohed, but I heard it repeated back to me today by the noble Lord, Lord Maclennan, as a justification for why we can be sanguine about the effect that having these elections on the same day will have on the 15 or 20 per cent of the vote, concentrated in London, who will not be part of a contemporaneous process. We are told that the London-centric media will be strong enough to counteract the differential turnout. Because I have done it myself, I admire the ability to use an argument that one opposes in a different set of circumstances for a different purpose. I do not admire the ability to use an argument that one opposes on a different occasion in the same set of circumstances. We seem to be persuading people much more than we thought on these Benches, from the results that we are having with the coalition.
However, I want to major on another point, which concerns respect. Having the referendum poll on the same day as elections to the Scottish Parliament shows a distinct lack of respect for the Scottish Parliament. The proposal has created in Scotland a unique coalition of opposition. That coalition of opposition was reflected in the views expressed and the vote cast in the Scottish Parliament itself. The Scottish Parliament, the electoral body that will have an election on the same day, has said to this Parliament, “Do not do this to us. Do not impose this dichotomy on our electorate on the same day and please do not do it against the background of the experience that we had in 2007, when a similar set of circumstances were created”.
I read that the Parliamentary Under-Secretary in the Scotland Office dealt with this argument in the House of Commons by saying that he had no response to that debate or that decision because not one argument was rehearsed in the Scottish Parliament debate that had not been rehearsed in the other place or in this Parliament and that therefore he did not need to take cognisance of it. That is disrespectful in the extreme and we in this place should be above that sort of argument.
I believe that the coalition is required to give Scottish parliamentarians, who have expressed their view in that way, an explanation as to why they are not listening to them. They particularly require to do that because this same coalition Government have just published a Bill that accepts a recommendation of the Calman commission that will give that Parliament the responsibility for organising its elections once that Bill becomes an Act. The Government have said, “In principle, we accept the argument that the Scottish Parliament should be a sovereign body in relation to the conduct of its own elections”. That is now printed in a Bill that they hope to persuade this House and the other place to support. At the same time, they are saying, “We will ride roughshod over your recent exercise—potentially—of that right by imposing on you a coincidence of polls that you say you do not want”. What is the coalition Government’s position?
Lord Maclennan of Rogart
I do not see any contradiction between giving the Scottish Parliament sovereignty over its own electoral matters and the right of this Parliament, which is sovereign over United Kingdom matters, to decide how referenda that apply throughout the United Kingdom should be decided. To abdicate that principle is not a matter of disrespect but a recognition of the principle of subsidiarity. That is deeply rooted in our constitutional understanding of devolution and membership of the European Union. We are entitled to take decisions in this Parliament that govern how this Parliament’s membership will be arrived at. We do not defer to Europe on that issue or to any regional or other body in this country on these matters.
Lord Browne of Ladyton
I am grateful to the noble Lord for his intervention because he sets the context for the argument that I am making. I am not making a legalistic argument. As he knows, I am well versed in the legal relationship between the devolved Parliament and the United Kingdom Parliament and was close to the process that delivered that settlement for the people of Scotland. I agree entirely with him in a legalistic sense but, if I understand his argument, he is now saying from the Liberal Democrat Benches that the Liberal Democrats’ attitude, or at least his attitude, to the Scottish Parliament is: “We have known the date of your election for four years, but we want that date. You can move”. If the implication of the noble Lord’s argument is accepted, that will at a stroke in Scotland undermine the only reason that we have heard articulated in this Chamber for why the coalition Government want to have the referendum on the same day as the Scottish Parliament election.
If I understand the noble Lord, he is saying, “We want to do these two votes on the same day to maximise the turnout, but if you are right”—and we have to accept that they are closer to this than we are—“that this will do a disservice to your election, feel free to move your election. Of course, we have known about the date of that election for four years, but the lack of respect that we have for you is such that you can move over and we will take your date, even if we don’t get your turnout”. That is not the argument that this House, this Parliament or, indeed, the coalition Government should be putting before the people of Scotland. The people of Scotland have spoken through their Parliament and said, “Please do not do this to us. Our electoral system and Parliament are important to us. Do not do this to us”. It seems to me, for all the reasons that have been rehearsed, that they create an argument that is in favour of the objective that the noble Lord wants to achieve. It does not seem to be unreasonable to ask the coalition Government to accede to that request.
Lord Falconer of Thoroton
My Lords, in this group there are two amendments and the clause stand part debate. The first, Amendment 39, is in the name of my noble friend Lord Foulkes of Cumnock, and seeks to delete Clause 4(3) on taking,
“The polls for the referendum and the Scottish parliamentary general election”,
together. The second amendment, Amendment 39A, is in the name of the noble Lord, Lord McNally. I have also given notice of my intention to oppose the Question that Clause 4 stand part of the Bill. I will come back on anything that the noble and learned Lord, Lord Wallace, says about Amendment 39A. That might be the fairest way to deal with it, unless the noble and learned Lord wants to speak before me on Amendment 39A. I am entirely in his hands.
Lord Wallace of Tankerness
If the noble and learned Lord thinks it would be helpful for me to speak to Amendment 39A, I will also deal with the other points that have been made and perhaps come back to him after he has had an opportunity to speak.
This has been an interesting debate. Some of the arguments have been well rehearsed before. In a debate a week ago tonight in Committee, the noble Lord, Lord Foulkes of Cumnock, sought in a very similar amendment not to have the referendum on 5 May. My noble friend Lord Strathclyde, the Leader of the House, responded, and the House took the view quite clearly that the amendment should not pass. I am always slightly wary of this position. I can understand the noble Lords, Lord Lipsey and Lord Campbell-Savours, who I think are basically in favour of some form of electoral reform, counselling against the date, but when the noble Lord, Lord Foulkes, who I know wants a no vote, tries to tell Liberal Democrats what is in their best interests, Greeks bearing gifts tend to come to mind. It is also interesting that the two sides of the argument—the one side that wants no and the other side that wants yes—think that there are equally good reasons for not having the referendum on 5 May. In some respects, they cancel each other out.
Lord Foulkes of Cumnock
The noble and learned Lord will recall that when I said that, I was talking about a conversation that I had had with a Liberal Democrat Peer, whom I wanted to remain anonymous, who argued with me that the date should be separate and that he should support my amendment. I was saying that this was the advice that I was being given from one anonymous Liberal Democrat.
Lord Wallace of Tankerness
I know that the noble Lord is always willing to give advice to Liberal Democrats. It is for Liberal Democrats to judge when and when not to accept his advice.
We rehearsed some of these arguments with the noble Lord, Lord Browne of Ladyton, during the debate in the House last Thursday on the order relating to the Scottish elections in 2011. The point about this debate on the amendment in the name of the noble Lord, Lord Foulkes, which indeed relates to Scotland, in combination with the clause stand part debate on local elections and perhaps some mayoralty elections in England, elections to the Welsh National Assembly, and a series of elections and other local referendums in Northern Ireland on the same day, is that the effect of the noble Lord’s amendment—
Lord Falconer of Thoroton
What the Government are doing in the Bill is saying that the polls to be taken together are local authority elections in England, local referendums in England not Northern Ireland, and mayoral elections in England, as well as the Welsh Assembly general election, the Scottish parliamentary general election, the general election of Members of the Northern Ireland Assembly, and the Northern Ireland local elections.
Lord Wallace of Tankerness
That is correct. I am grateful to the noble and learned Lord for setting that out ad longam. However, the point about the amendment, or indeed the clause failing to pass, is not that the poll for the referendum on the electoral system for the alternative vote could not take place on 5 May; it is, rather, that two polls could take place but would not be combined. It is important that we recognise just what the impact would be either of not letting this clause stand part or of passing the amendment in the name of the noble Lord, Lord Foulkes.
Lord Falconer of Thoroton
That is an interesting point. Clause 4(1) states:
“Where the date of the poll for one or more of the following is the same as the date of the poll for the referendum, the polls are to be taken together”.
That refers to,
“a local authority election in England … a local referendum in England … a mayoral election in England”.
What the noble and learned Lord has said in relation to that is right; that is, if they are on the same day, they can all take place in the same polling station. However, Clause 4(2) to (4) appear to be different. They state that it is compulsory for the polls to be taken together, so they have to be on the same day.
Lord Wallace of Tankerness
That point was raised on Report in another place. In fact, it does not need necessarily to be the referendum. I think that I am right in saying that the Scottish Parliament, the Welsh National Assembly and the Northern Ireland Assembly have the powers themselves to move the date. Therefore, if they were to use those powers, it would not make sense that they should be stuck together. Amendment 39A seeks to address that point.
Lord Falconer of Thoroton
Will the noble and learned Lord confirm what I am saying? Under Clause 4(1), it is permissive, if they are on the same day, for the three named elections to be dealt with together—for example, in the same polling station. Subsections (2) to (4) refer to the Welsh Assembly elections, the Scottish parliamentary elections and the Northern Ireland Assembly elections. As a result of this wording, they have to take place on the same day.
Lord Wallace of Tankerness
If that is taken along with Amendment 39A, which provides:
“If any of the elections referred to in subsections (2) to (4) are not held on the same day as the referendum, this Part has effect with any necessary adaptations and in particular … if the Welsh Assembly general election in 2011 is not held on that day, subsection (2) and Schedule 6 do not apply”.
There is a similar provision for the Scottish parliamentary election. Paragraph (c) to be inserted under Amendment 39A states that,
“if any of the elections referred to in subsection (4) are not held on that day, that subsection and Schedule 8 either do not apply or apply only in relation to the elections that are held on that day”.
So there is provision for a separation.
Lord Falconer of Thoroton
To come back on that, I found the drafting of Amendment 39A extraordinary. Under Clause 4(2) to (4), there is a requirement, as the noble and learned Lord has just confirmed, to have the Welsh Assembly, the Scottish Parliament and the Northern Ireland Assembly elections on the same day. But if they are not held on the same day—for a hurricane or something like that—then provision is made. Surely, subsections (2) to (4) would need to be amended as well in order to give meaning to Amendment 39A.
Lord Wallace of Tankerness
The purpose of the combination is that if the elections take place on the same day and are not, for some other reason, separated, they should be combined. If they are not combined, the amendment would have the polls being conducted on the same day, but separately. For example, there would be no effective provision for administrators to use the same ballot boxes. There would have to be separate polling stations, which, technically could be within the same building, but they would have to be separate, or they might not necessarily be in the same building. As I am sure that the noble and learned Lord realises, that is the purpose of the combination.
Lord Falconer of Thoroton
I am sorry, but if the noble and learned Lord looks at the wording, there is a distinction. Clause 4(1) refers to the fact that where they are on the same day they can be held together, which is plainly the point about not having to be in separate polling stations. Subsections (2), (3) and (4), as I thought the noble and learned Lord had confirmed, are drafted in different terms and are put on the basis that:
“The polls for the referendum and the Welsh Assembly general election … are to be taken together”.
So there is a requirement that they must be taken together, which means that they must be on the same day.
Lord Wallace of Tankerness
The noble and learned Lord will recall—he is stating the obvious—that when this Bill was brought to this House from the other place the referendum, prior to the successful amendment of the noble Lord, Lord Rooker, would have been on the same day. Therefore, as they were going to be on the same day, it made good sense, as I hope the House would agree, that the polls should be combined. I do not think that the Government should stand accused because there has been an amendment—the consequential amendment was not necessarily made here. In the debate last Wednesday, the noble Lord, Lord Rooker, was encouraging the Government to bring forward an order which would make it 5 May but could be subject to change as long as it was before 31 October.
So, when the Bill came to this House it stated that the referendum would be held on 5 May. That is the date for elections to the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly. Therefore it makes sense, if the referendum is still to be held on 5 May, and indeed it is still the Government’s position that they can achieve a referendum on that date. The Bill that was passed by the other place, published and brought to this House provided that the referendum would take place on the same day. I hope the noble and learned Lord and other Members of the Committee would agree that if they are held on the same day, it makes eminent common sense to combine the polls, and that is what is sought in Clause 4.
Lord Falconer of Thoroton
What the noble and learned Lord says is correct. If they are to be held on the same day, it is wholly sensible to combine them. Why are subsections (2), (3) and (4) set out in different terms from subsection (1)? If the reason for Amendment 39A is the result of my noble friend Lord Rooker’s amendment, why not just amend it and say that if the polls for the referendum and the Welsh Assembly take place on the same day, which is the effect of subsection (1), then they are to be taken together?
Lord Wallace of Tankerness
My Lords, I think that I have explained this. It has been a matter of some debate, but nevertheless it was expected that the elections to the Scottish Parliament would be held on 5 May 2011. It was expected that the elections to the Welsh Assembly would also be held on that day. Therefore, given that that was the date originally set out in the Bill as it came to the House prior to amendment, it makes sense to combine them. But before I sit down I will try to set out why the terms are somewhat different for the polls that will be taking place in England on that date. It could be that a particular date has not yet been set for a particular local referendum. That could be a possible explanation, but before I conclude, I hope there may be some explanation as to why the terminology is somewhat different.
Lord Hamilton of Epsom
Could my noble and learned friend address the whole issue of confusion? On 5 May, two important issues are going to be debated with the voters. One is who gets elected to all these local bodies, the Scottish Parliament and so forth, and the other is the question of the referendum on the alternative vote. But as we have discovered already, the noble Lord, Lord Lipsey, may campaign in favour of the alternative vote and in favour of a Labour candidate. The noble Lord, Lord Foulkes, will campaign in favour of a Labour candidate and against the alternative vote. Is this not going to create confusion among the electors? Even on the Conservative Benches, if we look hard enough we may find someone here who is in favour of the alternative vote. I do not know who it is, but if we look hard enough, perhaps we will find somebody. They would ask voters to be in favour of the alternative vote in the referendum while at the same time supporting a Conservative candidate, while the overwhelming number of Conservatives would probably ask voters to vote against the alternative vote and in favour of the Conservative candidate.
These are two important issues. Is there not a very strong argument to consider them on separate days so that they can be debated properly and separately? They will not then be mixed up in the way that they are due to be at the moment.
Lord Wallace of Tankerness
In reply to my noble friend, these issues were rehearsed when considering a specific amendment not to have the referendum on 5 May next year. The amendment was defeated by 210 votes to 166. I do not doubt for a moment that there will be a campaign on the yes and the no sides for change to the alternative vote and that people will also be campaigning on the local elections. I do not believe that that will confuse the voters. There will be a clear question on what system of elections they want for the other place in the future and there will be clear questions on who they want to elect to the local council, the Scottish Parliament, the National Assembly for Wales or the Northern Ireland Assembly. While I suspect that the co-operation between parties may not be as cordial as it might otherwise be, as we have already seen embryonically, various people across the parties are coming together to mount joint campaigns for the yes or the no vote. It is rather a sad reflection on our politics that people who want to come together to argue a particular case for a future voting system cannot do that and campaign for a local candidate of their own party at the same time.
Lord Campbell-Savours
May I remind the noble and learned Lord that he is speaking to his amendment, and that the contribution he has just made should follow on the next contribution, which comes from my noble friend who will wind up the debate prior to the Minister’s reply?
Lord Wallace of Tankerness
With respect, my noble friend asked a question and I thought it only courteous to give him an immediate reply.
Lord Rooker
I had not really studied this amendment, and it did not cross my mind that it was a reaction to last week’s amendment. However, Amendment 39A says:
“If any of the elections referred to in subsections (2) to (4)”—
that is, the elections in Scotland, Wales and Northern Ireland—
“are not held on the same day”.
What are the circumstances envisaged in which they will not take place on the same day? I did not think that they controlled their own dates at present, so which circumstances have brought about Amendment 39A whereby those elections would not take place on the same day as the referendum? I am not clear about that.
I have another point. The accounting officers of those Parliaments will be driven by subsections (2), (3) and (4), which order those elections to be taken together at the same time as the clause envisages that they will not be. The lawyers in those areas will be spending money on planning, but it looks as though there are two different and contradictory instructions on what will be in the same clause. But my main point is the first one—what are the circumstances envisaged?
Lord Wallace of Tankerness
I am hugely grateful to the noble Lord, Lord Rooker, for allowing me the opportunity to explain the origin of this. I do not want to disappoint him; it was not as a direct response to his amendment which was carried. As I indicated, the Bill provides in this clause for a combination of the poll on a referendum with the polls for the elections to the devolved legislatures. During the Bill’s Report stage in another place concerns were raised that the current drafting of the clauses restricts the ability set out in existing legislation for the date of the elections to the devolved Assemblies to be moved to a day which would be different from that on which the referendum is scheduled to take place. In order to avoid confusion, we have tabled this amendment to make it clear that the existing legislative powers to change the date of the polls for the Welsh Assembly, the Scottish parliamentary election and the Northern Ireland Assembly elections are not affected by the combination provisions in the Bill.
I think I am right in saying that the Scottish Parliament can bring forward the election. I am getting reassurance on that from a Member of the Scottish Parliament for the Lothians region, the noble Lord, Lord Foulkes. It can bring it forward by six months on a two-thirds vote or resolution of the Parliament. Concern was expressed—I do not think that it was specific to Scotland—that it might be felt that the statutory provisions in the Scotland Act, and in the parallel provisions of the legislation establishing the Welsh National Assembly and the Northern Ireland Assembly, were being impeded or restricted in some way by this provision. It was to avoid any confusion of that nature that this amendment was tabled, to make it clear that the existing powers are not affected.
I hope it is accepted that that is a perfectly valid position to take. If any of these Parliaments or Assemblies wish to change it within their own statutory powers, for whatever reason, that should not be inhibited by the provision in the Bill. This is for clarification. I defer to one of the noble Lords who saw through the Scotland Bill all of 12 years ago.
Lord Sewel
Not only that, my Lords, but I have form in that I put a referendum Bill through this House at one stage. Does the noble Lord accept that the empirical evidence, both from this country and from one which has used referenda many times in a quasi-political role, France, is overwhelmingly that when it comes to referenda the electorate votes not on the question before them but on the popularity of the Government of the time? On this issue, does not conflating the issue of the merits of the electoral system with the popularity of a Government fill him with horror, particularly in Scotland?
Lord Wallace of Tankerness
Given that one part of the Government is likely to be supporting the yes campaign and one part, as likely as not, will be supporting the no campaign, I rather think that that might encourage people to look at the merits rather than find the best way to take it out on the Government. If there are two parties in a coalition and they are on either side of the argument, it is difficult for that argument to hold as much water as I accept that perhaps it has in the past. I am sure that the referendum on 1 March 1979 was not helped by coming immediately on the back of the winter of discontent. Nevertheless, that allowed a fair amount of cross-party support to try to get the yes vote out, and indeed the no vote. It is up to those of us who want to campaign to ensure that we are campaigning on the issues and not on some test of the parties in power. The fact that the poll is being held on the same day as other elections may mean that some of the more partisan effects that referendums—or referenda, whichever is your preference—may have on the question could be channelled into the elections being held that day. It may mean that we can have a proper debate on the relative merits of changing to the alternative vote system or of sticking with first past the post.
Lord Falconer of Thoroton
The Minister is giving a very helpful explanation of why he has put this amendment forward. In the light of what he has said, I now understand why he has done so, but the amendment does not seem to achieve its end. I understand him to be saying that the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly have the power to change the date of their elections and that, if they did so, the Government would not seek to move the date of the referendum. So the Government’s position is that if the polls are on the same day, they should be combined.
Clause 4(1) says precisely that. Why on earth are the Government drafting the Bill in the terms in which it appears to be drafted—that the polls for the referendum, the Welsh Assembly, the Scottish Parliament and the Northern Ireland Assembly have to be held on the same day? Why are they not drafting it on the basis that, if the polls for the referendum and the Welsh Assembly are on the same day, they are to be taken together?
We do not agree with combination—we will come to that later when we say that Clause 4 should not stand part—but I cannot understand why the Minister is being advised that this is the way to achieve what he so clearly describes. Why are the Government not just saying that if the polls are on the same day, they are to be taken together?
Lord Wallace of Tankerness
As I have already explained, 5 May was the date originally set out in the Bill. I do not think that anyone is disputing that. It was the date set down for the elections for the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly. I shall speculate, and I hope that I can get confirmation for this, that there could be a local authority election in England that may not necessarily be on 5 May, whereas the Scottish parliamentary election has been set for 5 May.
Lord Wallace of Tankerness
The noble and learned Lord says that it could be changed. That is why we have brought forward the amendment. I do not believe that it contradicts at all.
I shall recapitulate. There could be a local authority election in England that need not be on 5 May. When the Bill was brought to this House, having been passed by the other place, it had been agreed in the other place that the referendum should be on 5 May. That was the date set for the Scottish election, the Welsh Assembly election and the Northern Ireland Assembly election. It therefore makes sense, and I think that this has been widely conceded, that if the elections were to be held on the same day, as was anticipated when the Bill was brought to this House, the polls should be combined for a host of good, sound administrative reasons. Subsequently there has been a change.
It was drawn to our attention on Report in another place that there was a potential problem. Because of the inherent powers in the statutes establishing the three devolved institutions, the election might not be on 5 May if they chose, for whatever reason, to exercise those powers. That is why Amendment 39A has been tabled. The noble and learned Lord may wish to debate whether it achieves its purpose. I think I have explained what its purpose is; it is to ensure that there was no dubiety and that the powers given to the Assemblies and the Parliament were not in any way infringed by the provisions.
That is it, very simply. I think it is relatively simple. The dates were anticipated, because of the way the Bill stood, to be the same. There could be a local authority election in England that did not necessarily fall on 5 May. The purpose of the government amendment is to provide that, if the Scottish Parliament—for the sake of argument—wished to change the date, it would be allowed to do so. It would not be inhibited from doing so by these provisions.
That is why the political arguments around whether the date is right or wrong are not relevant to this clause, which is, in some respects, a technical clause. It links to the various schedules. I pick up the point of the noble Lord, Lord Lipsey, who pointed to all the schedules when my noble friend Lord McNally said that this is a simple Bill. The schedules have been put into primary legislation, making provision for combining polls in England, Wales, Scotland and Northern Ireland. There are four separate schedules, covering matters that, in many cases, would be put into secondary legislation. However, for simplicity and given the nature of this matter, it made more sense for them to appear in primary legislation in the Bill. This led to extending the length of the Bill considerably, but that is why the schedules are there: it was thought better to have the combination of provisions in the Bill.
I rather hope the noble Lord, Lord Foulkes, will accept that the consequence of his amendment—this is why I ask him to withdraw it—would not necessarily be to change the date of the poll. He has already lost an amendment specifically on that. It would, however, mean that if the two polls were held on the same date, they could not be formally combined. Therefore, there might be people who would have to go to two separate polling stations. That is not in anyone’s interests.
I know that this is perhaps more technical than I anticipated but it is not a political argument about the date of the poll. It is a technical one, which says that if the polls fall on the same date—it is still the Government’s intention that we should achieve that on 5 May—it is in the interests of those who would take part, not least those who are administering it, such as the returning officers, that the situation should be simplified as far as possible. I recall a Question in the House, asked by the noble Lord, Lord McAvoy, in July, about a letter from the convenor for the Interim Electoral Management Board for Scotland. He asked formally for the polls to be combined if the election and the referendum took place on the same day. This is our response to the spirit of that request.
No doubt we will come back to this if issues are raised by the noble and learned Lord, Lord Falconer, but I hope the noble Lord, Lord Foulkes, will appreciate that, whatever the political argument—there has been plenty of political debate—the technical argument means that it makes much more sense to combine the polls, as proposed in this clause. His amendment would have the rather unfortunate effect of splitting them, should they take place on the same day.
Lord Falconer of Thoroton
It is important to see what Clause 4 says. That is why it is worth taking some time over these things. Clause 4(1) says:
“Where the date of … a local authority election … a local referendum”,
and,
“a mayoral election in England”,
is the same as that of a referendum, the polls can be combined. That does not commit the Government to having them on the same day. It is expressly conditional on their being on the same date.
The drafting of subsections (2), (3) and (4) is in different terms for reasons that are inexplicable, unless their purpose is to make it compulsory to have the polls on the same day. As far as that is concerned, although I completely accept that the Government intend that the Welsh Assembly, the Scottish Parliament and the Northern Ireland Assembly should be able to exercise their powers to move the date, the fact that you have what appears on the face of it to be compulsion to hold the relevant polls on the same day appears to me, constitutionally, to lead to a situation whereby subsections (2), (3) and (4) would override the power of the Scottish Parliament to do that. The Government do not intend that outcome and therefore they should amend subsections (2), (3) and (4) to make them the same as subsection (1).
Lord Mackay of Clashfern
My Lords, it is important to read Amendment 39A before one gets too deeply involved in this argument. Amendment 39A says that if the relevant polls are to be on different days, “this Part” of the Bill—that includes subsections (2), (3) and (4)—has effect. If the noble and learned Lord, Lord Falconer, had drafted Amendment 39A, it might have been worded differently. Unfortunately, he is not, as yet, a member of parliamentary counsel and therefore he is left to criticise what they have done. However, parliamentary counsel have not left his point out of account, as the amendment states that “this Part” of the Bill, including subsections (2), (3) and (4), will be construed in this way.
Lord Falconer of Thoroton
If the noble and learned Lord, Lord Mackay of Clashfern, had drafted these amendments, I anticipate that he would have drafted them differently as well. On the face of it, this drafting confronts you with subsections (2), (3) and (4) comprising a compelling combination. Amendment 39A says:
“If any of the elections … are not held on the same day”,
yet subsections (2), (3) and (4) compel them to be on the same day. I completely understand what the noble and learned Lord, Lord Wallace of Tankerness, is seeking to achieve and I do not seek to stand in his way. However, his obdurate refusal to consider doing it the obvious way—namely, inserting at the beginning of subsections (2), (3) and (4), “if they are on the same day, they will be have to be combined”—causes me confusion. I earnestly ask the noble and learned Lord to ask his officials politely and respectfully whether it would not be easier to use the same wording as that used in subsection (1) and get rid of the confusion.
Lord Browne of Ladyton
As a mere junior counsel in the face of two of the most eminent senior counsels this country has ever seen, I enter this debate with great trepidation. I am extraordinarily grateful to my noble and learned friend Lord Falconer because the penny has dropped for me. The amendment that the Government propose becomes effective only if the polls do not take place on the same day. As long as the Bill stands as it is drafted, they can take place only on the same day.
Lord Falconer of Thoroton
The noble Lord, Lord Browne of Ladyton, is right and I refer him to the comparison between subsections (1) and (2), (3) and (4). However, I have made my point and I earnestly ask the noble and learned Lord, Lord Wallace of Tankerness, to consider taking the government amendment away and coming back with a measure on Report to achieve his aim, should Clause 4 still remain part of the Bill after the Committee stage.
I wish to address what the noble and learned Lord rightly describes as the political aspects of this. Clause 4 is included to allow for the combination of polls. It is intended to ensure that a variety of elections can take place together. As a matter of principle, we think that that is the wrong approach to that issue. There is no dispute in any part of the House regarding the importance of the referendum. I cannot recall a referendum over the past 150 years—it is more a case of reflecting on history than personal recollection—which concerned the voting system. I think most people in this House would agree that we should hold referenda only in relation to very important constitutional issues. The referenda held since the Second World War concerned: the partition of Ireland; staying in the European Union; the 1978 referendum on devolved Assemblies for Wales and Scotland; and the 1998 referendum on devolved Parliaments or Assemblies for Wales and Scotland—all very important issues. As far as I am aware, each of those referendums has taken place alone, without there being any other poll on the same day. That is a sensible course whereby this country’s approach to referenda is that you have them only when there is an important constitutional issue. We heard from my noble friend Lord Lipsey and the noble Lord, Lord Hamilton, who both said how important the issue is.
We also have the report from your Lordships’ Select Committee on the Constitution, which is a cross-party organisation that spoke unanimously on the issue. The committee cited evidence that the effect of having elections on the same day as a referendum is that the referendum debate gets swamped by the election of individual people. If you look at America, where frequently referenda take place on the same day as elections—such as those in November this year—you find that no one pays much attention to the referenda and everyone pays attention to the election of individual people. If the Select Committee of this House is right, you are in danger of the referendum question being swamped by the election of people in the three—or even four, if there is also a mayoral election—other elections going on at the same time.
Why is this being done if it is such an important issue? Everyone in this House wants the constitution properly to be given effect to. I do not want there to be a sense of illegitimacy about the result. Whatever view one takes about this referendum, one wants it to be decisive—decisively in favour of either first past the post or the alternative vote system. The result could be close, but you would want a good turnout and the sense that the question had properly been addressed.
This is the second national referendum in 120 years. It is the first one to affect our electoral system—the one that will make people have a view about whether they trust their electoral system. This Government, as I understand it, justify bringing the referendum together on the same day as the other elections when there is formidable evidence that it leads to the question being swamped. The Government justify that on the basis that it will save some money. Money is important, but it may be that the legitimacy of our constitution is more important.
This is a fundamental point of principle, and it is not too late for the Government to change their position. I should have thought that everyone on the government side, whether they are for or against a change in the electoral system, would want the result of the referendum to be something that the country has confidence in. What we are doing on this side is, in effect, reflecting the arguments of experts who say that having the referendum on the same day as other elections is not a good idea. It deprives the result of legitimacy.
Lord Maclennan of Rogart
I am grateful to the noble and learned Lord for giving way. He gave an American example, because he could not refer to any British example or precedent. However, as recently as November, California—a state close to bankruptcy—decided in one day both to change the party in government there and have a conservative outcome in a referendum on gay marriage. I do not think that it is appropriate to draw any conclusions from the American example, except that people are intelligent enough to understand what they are doing—and they do it even when there appears to be some conflict between their decisions.
Lord Falconer of Thoroton
The American experience, which is part of the evidence relied on in these debates, suggests that in the polls in November, either in mid-term or general election years, the tendency of the public is not to focus on the proposition but to focus primarily on the people they are electing. In the coverage in November I did not spot the result of the proposition in California; all I spotted, which is where all the coverage was in America, was who was going to win in California. So the American experience tends to confirm what the Select Committee said—that the referendum question gets swamped in the question, for example, of who you want to be your Government in Scotland, Wales or Northern Ireland.
Why is it being done like this? Is it only to save money or are there other reasons? The amendment of the noble Lord, Lord Rooker, to which we have all agreed, has given the Government the opportunity to hold the referendum on a different day. In answer to my opposition to Clause 4 standing part, it is necessary for the Government to say why they think it is right that this critical question should be dealt with on a day when there are other polls; when it has never before been done in our history; when experience in other jurisdictions suggests that the referendum question gets swamped; when anyone who has any care for our constitution wants the result to be decisive. I do not want a situation where whichever Government are in power seek to change the electoral system; I want something that is settled as far as the people are concerned. That has always been the purpose of referenda in the past. Furthermore, quite separately from those points of principle, there is inevitably scope for confusion with so many elections going on with different electorates.
I shall listen very carefully to the noble and learned Lord, Lord Wallace of Tankerness, justifying why an issue as important as this is being dealt with in a way which seems to make it harder to come to a legitimate result than easier.
Lord Wallace of Tankerness
My Lords, as I indicated when I spoke earlier in dealing with these amendments, the nature of Clause 4 is of a technical combination; it is not one of the political arguments. The political argument was debated in this House quite thoroughly last Monday evening in Committee and, indeed, my noble friend Lord Strathclyde gave the answers to the questions of the noble and learned Lord, Lord Falconer. He may not have liked the answers, but that is a different matter. The House then came to a view and endorsed the argument put forward by my noble friend Lord Strathclyde. The amendment seeking not to have the referendum on 5 May—which I think was tabled by the noble Lord, Lord Foulkes; he will correct me if I am wrong—was defeated.
The purpose of Clause 4, as I have indicated, is of a technical nature. It ensures that if the polls take place on the same day they are combined. That makes good sense for the voter—who I hope is still the most important person in this—and it makes good sense for those administering the elections. The Opposition have acknowledged and conceded that that is the case and that the technical arguments are very strong.
The London mayoral referendum took place on the same day as London elections, so the idea that having a referendum on the same day as elections is unprecedented does not hold water. As that was brought forward by the party of the noble and learned Lord when it was in government, one assumes it thought that it was quite an important referendum. Given that we have had only one UK-wide referendum in our history, I do not think we can use it to set a precedent. As I said, the arguments on the politics have already been made in a previous debate. This is very much a debate on the technical nature of combination.
The reason why the terms are different in subsection (1) is that the elections to the Scottish Parliament, the Welsh National Assembly and the Northern Ireland Assembly are fixed by statute. The particular local elections are not necessarily fixed by statute, hence the different wording. The amendment of my noble friend Lord McNally has the same effect.
Lord Falconer of Thoroton
Why does the fact that it is fixed by statute but can be changed make a difference?
Lord Wallace of Tankerness
Sorry, I do not follow the noble and learned Lord’s point. In the Bill as it originally stood prior to any amendment, the date was to coincide with the statutory dates for the other elections—hence the wording of these proposals. My noble friend’s amendment makes provision that, if the referendum was not on the same day as a poll for the Scottish Parliament, the Welsh National Assembly or Northern Ireland Assembly, the relevant schedule will not apply and, therefore, they will not be combination. That is what this clause is about and what this amendment is about. I ask the noble Lord, Lord Foulkes, to withdraw his amendment, as it could have an unfortunate effect, which I am sure is not what he intends. I ask the Committee to support the clause, which is important from a technical point of view, not least in the interests of voters.
Lord Foulkes of Cumnock
This has been a very interesting and revealing debate. If noble Lords were not confused before they came into the Chamber, I am sure that they are now. My amendment would remove the subsection that says:
“The polls for the referendum and the Scottish parliamentary general election in 2011 are to be taken together”.
Nothing could be clearer than that, could it? Then we have the amendment, which the noble Lord, Lord McNally, tabled in a panic, because of something that happened on Report elsewhere. It refers to a circumstance “if” they are,
“not held on the same day”.
Which takes precedence? Surely saying that they are to be taken together means that they are to be taken together. Nothing could be clearer than that. Even the noble and learned Lord, Lord Mackay of Clashfern, the former Lord Chancellor, said that if that said that they were to be taken together, they were to be taken together.
Lord Mackay of Clashfern
I did not say that. I said that the amendment in the name of the noble Lord, Lord McNally, affects the whole of that part, including subsections (2), (3) and (4) of Clause 4. It modifies the phrasing that the noble Lord has quoted. I agree that that could have been done differently, as the noble and learned Lord, Lord Falconer, says. I do not necessarily subscribe to the view that, if I had been doing it, it would have been different; that is a different judgment altogether. However, it makes sense that the clause that the noble Lord, Lord Foulkes, is talking about is affected by the amendment tabled by the noble Lord, Lord McNally, if it passed, when it says that the clause is to be modified if this happens.
Lord Foulkes of Cumnock
I hope that that is now clear. There is a lot of money to be made by lawyers one way or another in challenging this. Certainly, it looks strange to me.
I have a couple of things to say in relation to the debate on the amendment in the few minutes that we have left. The noble Lord, Lord Hamilton, made a powerful point when he said that an extensive debate on the referendum was needed. Someone said in a previous debate that this great debate needed its own space, unsullied by local and Scottish elections. My noble friend Lord Lipsey spoke as usual with eloquence and grace, although I disagreed with much of what he said. One thing that I did agree with was his questioning of the idea that this was a simple Bill. It is not a simple Bill. The noble Lord, Lord McNally, described it as aiming for fair votes and fair boundaries. The noble Lords, Lord Strathclyde and Lord McNally, and now the noble and learned Lord, Lord Wallace of Tankerness, have clearly been given a remit from Mr Clegg and Mr Cameron to get this Bill through at all costs. They have been told, “Put your heads down and don’t worry about the arguments. If points are made by the other side, don’t worry too much about answering them. Just get it through”. That is what they are trying to do. As I said in a previous debate, this is the Clegg project and it must be got through.
The noble Baroness, Lady Royall, asked an important Question at Question Time today about holding the Executive to account. This Chamber of Parliament should have some respect for holding the Executive to account, and the Executive should have some respect for debates and votes that take place in this Chamber. The questions that have been raised have been ignored. They are sincere and important questions, which are not being answered from the Dispatch Box. The noble and learned Lord, Lord Wallace, did a much better job of answering the questions today than he has done previously. I understand that the questions concern the technicalities of the poll. However, when I moved my amendment, I, too, dealt with the technicalities of the poll and said that there would be great confusion because of the two franchises taking place. Because of the technical argument of the noble and learned Lord, Lord Wallace, and because of his plea to me to withdraw the amendment, I will do so, on the basis that it would be much better for all of us if we struck out Clause 4.
Lord Falconer of Thoroton
My Lords, I earnestly ask the noble and learned Lord, Lord Wallace of Tankerness, to think again about the wording of the government amendment. I have made it clear that we would support what he wants to do if Clause 4 stands part, but I believe that the Government have not got it right and I ask them to think again. In relation to Clause 4 stand part, I will seek the opinion of the Committee, because this is the means of allowing the polls to be held together. It is right that the clause has technical aspects, but it is basically the foundation of the polls being held together.
Lord McNally
“( ) If any of the elections referred to in subsections (2) to (4) are not held on the same day as the referendum, this Part has effect with any necessary adaptations and in particular—
(a) if the Welsh Assembly general election in 2011 is not held on that day, subsection (2) and Schedule 6 do not apply (and Part 3 of Schedule 4 applies with the necessary adaptations);(b) if the Scottish parliamentary general election in 2011 is not held on that day, subsection (3) and Schedule 7 do not apply (and Part 3 of Schedule 4 applies with the necessary adaptations);(c) if any of the elections referred to in subsection (4) are not held on that day, that subsection and Schedule 8 either do not apply or apply only in relation to the elections that are held on that day.”