House of Lords

Wednesday 15th December 2010 Lords Chamber

Wednesday, 15 December 2010.

15:00

Prayers—read by the Lord Bishop of Bristol.

Olympic and Paralympic Games 2012: Olympic Truce

Wednesday 15th December 2010 Lords Chamber

Question

15:08

Asked by

[Lord Bates]

To ask Her Majesty’s Government what preparations they are making for the implementation of the Olympic Truce at the London 2012 Olympic and Paralympic Games.

[Baroness Garden of Frognal]

The Government fully support the principles of tolerance and understanding, equal opportunities and fair play that underpin the Olympic Truce. As the host country, the UK will be promoting a fresh resolution calling for the continued observance of the Olympic Truce for the 2012 Games, as has every host nation since 1992.

[Lord Bates]

My Lords, I am very grateful to my noble friend for that positive response, but is she aware that the entire purpose of the ancient Olympic Games was peace? That was underwritten by a sacred truce. Those games ran for 1,200 years, and violations were extremely rare. By contrast, the modern Olympic Games have been running for 110 years. They have been cancelled due to war three times, the subject of terrorist attacks twice and of mass boycotts five times, and the truce has been violated on virtually every occasion. What steps can Her Majesty's Government take to ensure that next time, we do things differently?

[Baroness Garden of Frognal]

My Lords, I pay tribute to my noble friend for his enthusiasm and persistence in ensuring that the possibilities for an Olympic Truce are not overlooked. He will be aware that the UN resolution will not be drafted until January, and the Government will welcome proposals and ideas, including those along the lines that he suggested, which could be incorporated in the resolution. As for international peace proposals, we are of course dependent on other countries to help us to make any headway there.

[Lord Addington]

My Lords, have the Government thought about whether they might want to extend the idea of the Olympic Truce to all other major sporting events, or at least have some occasion when we might discuss things outside sport when we are having a sporting event?

[Baroness Garden of Frognal]

My noble friend makes a valid point. The core of the Olympic Truce was to promote the Olympic ideals, to use sport to help promote dialogue and reconciliation, especially between nations in conflict. We could perhaps look at future sporting events to see how that could be applied to, say, Rugby League, football and various other World Cups and world events.

[Baroness Grey-Thompson]

My Lords, has the noble Baroness considered applying the wider ideals of the Olympic Truce, such as good behaviour and citizenship, along with inclusive school sport and the inspirational nature of the Games as something that could be considered a true legacy of the Olympics?

[Baroness Garden of Frognal]

The noble Baroness makes a valid point. We are promoting a number of different ideas around the Olympics. They are not directly connected to the Olympic Truce but seek to involve today’s youth in different sports programmes. There is the Get Set programme sponsored by LOCOG, for example, and a project involving young people making films around the theme of truce. A lot of ideas are floating around at the moment and, as we get closer to the Games, we will need to pull them all together so that we derive a concrete legacy from the Olympics.

[Lord Jopling]

My Lords, is it true—this story has appeared in the press—that the budget for security for the Olympic Games in London is being severely cut? If it is true, and bearing in mind that whether or not we have a truce this extremely expensive two or three-week circus in London will be an invitation for bombs, bullets, bloodshed, blackmail and boycott—to say nothing of bogus budgets—would it not be a major folly to cut the security budget?

[Baroness Garden of Frognal]

My noble friend makes some valid points but paints a rather depressing picture. Certainly matters of security around the Olympics are of high priority to the Government and will be dealt with in an appropriate way.

[Lord Boyce]

My Lords, I am interested in the Minister’s answer to the original Question about whether the Government are looking for a continuance of previous UN resolutions on the Olympic Truce. What are the Government going to do to deliver some kind of tangible result rather than fine-sounding words, which is what has happened for the past 100 years?

[Baroness Garden of Frognal]

As the noble and gallant Lord says, there have been a lot of fine-sounding words. It is quite difficult to look back for examples of what has happened in countries which have previously declared their support for the Olympic Truce but have found it difficult to achieve particular outcomes to demonstrate it. It is early days at the moment and we welcome ideas on how something positive can come out of our Olympic Games in 2012.

[Baroness Billingham]

Can the Minister reassure the House about our future Olympians—the young people of today—because we are getting conflicting messages? Can she tell us about the £162 million which was ring-fenced for school sport and about which there was much discussion? We understood that the Prime Minister was to intervene, but now we are told that he is not going to do so. Today we hear that that £162 million has disappeared. Where has it gone? How are we going to produce sportsmen and women in the future without it?

[Baroness Garden of Frognal]

My Lords, the coalition Government are committed to reviving the culture of competitive sports in schools in ways that achieve real value for the sport. The Schools Olympics is one of the programmes designed to encourage every pupil in the country to get involved in competitive sport and to give them an opportunity to do so; and to harness the power of the Olympic and Paralympic Games to inspire a generation of young people to take part in sport. There are a number of other initiatives which we hope will also contribute to that aim.

[Lord Christopher]

My Lords—

[Lord Mawhinney]

My Lords—

[Lord Christopher]

My Lords, given the importance of the question of the noble Lord, Lord Jopling, would the Minister be kind enough to tell the House what “in an appropriate way” means?

[Baroness Garden of Frognal]

That was in reference to the security around the Olympics. Matters of security are best left to the people who have responsibility for them. The Question was about the Olympic Truce. Obviously matters of security will be relevant to that but are not directly relevant to this particular Question.

[Lord Mawhinney]

My Lords, my noble friend has said that she is open to at least considering suggestions. Would the Government be willing to consider the possibility of linking the observance of an Olympic Truce by a country with its participation in the following Olympics?

[Baroness Garden of Frognal]

My noble friend makes an extremely interesting proposal. Given that we are at the stage of welcoming suggestions and proposals, perhaps we could have that question in writing and begin to develop some ideas around it.

Burma

Wednesday 15th December 2010 Lords Chamber

Question

15:15

Asked by

[Lord Elton]

To ask Her Majesty’s Government what assessment they have made of the role of China in the development of the infrastructure and economy of Burma and of its implications for that country and the region.

[The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford)]

My Lords, Chinese investment in Burma is significant and growing. Major projects are under way in the oil, gas and mining sectors. We are concerned that such investment will not benefit the people of Burma due to the regime’s economic mismanagement and the prevalence of corruption and human rights abuses, including forced labour. Increased competition in the region for influence and economic opportunities in Burma has reduced pressure for genuine political reform.

[Lord Elton]

My Lords, in view of China’s overt economic and tacit political support for this tyrannical regime and that of North Korea, should we not now be looking with critical and anxious eyes at China’s enormous economic effort in other places, such as Africa and South America?

[Lord Howell of Guildford]

I am particularly grateful to my noble friend for raising this issue because the answer is an emphatic yes. The extent of Chinese investment and trade in Latin America, Africa and south-east Asia is enormous and growing very fast indeed. We constantly urge the Beijing Government and the Chinese to match their actions and their activities with a responsible influence so that the vast sums that are poured in and the huge infrastructure that has developed can be of benefit to and not disrupt the economies in which they operate. But it is an uphill task and there is very rapid change going on in the balance of world power as a result of these developments.

[Baroness Cox]

My Lords, is the Minister aware that the Shan Women’s Action Network has recently launched the report High and Dry documenting very serious problems affecting people in the Shan state of northern Burma arising from a dam being built on the Longjiang River in China’s Yunnan Province? It highlights the need for an assessment of the impact of trans-boundary dams and shared water resource management. Could Her Majesty’s Government encourage the Chinese Government to address these matters urgently because they are seriously affecting the lives and livelihoods of people inside Burma?

[Lord Howell of Guildford]

Yes, we are aware of the Shan Women’s Action Network report which has just been published and the very worrying situation it outlines where the potential stoppage of water further up the river by Chinese activity would cause grave harm. We regularly discuss environmental concerns at official level with the Chinese Government; we are particularly focused on this matter and will certainly raise it further with them.

[Lord Hylton]

Can the Minister confirm that China has been buying up large quantities of the best tropical hardwoods from Burma only to convert them into low-grade plywood? Is that not a bad bargain for both countries?

[Lord Howell of Guildford]

I cannot confirm the detail but that kind of practice is clearly highly undesirable. In our constant dialogue with the Chinese on the need for environmental responsibility, that is a matter that we will certainly raise if we are not doing so already.

[Baroness Kinnock of Holyhead]

My Lords, of course we all agree with the concerns which the noble Lord has expressed about the way that China behaves in Burma as well as in other parts of the world. However, as far as that region is concerned, is not the most important thing to ensure that China uses the influence that it has regionally on the Burmese regime?

[Lord Howell of Guildford]

I think I understood the noble Baroness. Clearly, we have to seek responsible dialogue with the Chinese to ensure that they do not undermine the effect of the sanctions that we are keeping in place and which are having some effect because the generals are complaining bitterly that the sanctions put in place by the US, Australia and the EU are damaging their lifestyle and plans. So we will continue with these sanctions but we must have better co-operation from China and other countries in this matter. If that is what the noble Baroness was arguing for, I am right with her.

[Baroness Falkner of Margravine]

My Lords, does my noble friend agree that the slight shift in the US position, whereby it wishes to have direct negotiations with Burma to build a better relationship in the longer term, will help shift the regional balance of power by making China less capable of making Burma a client state, particularly in terms of ports in the Indian Ocean and strategic shipping?

[Lord Howell of Guildford]

We are constantly looking at ways of bringing more effective global pressure to bear on this unpleasant regime and its practices. Any developments of this kind need to be measured and calibrated very carefully, but it is the direction in which we should go.

[Baroness Symons of Vernham Dean]

My Lords, do the Government believe that there is any truth in the suggestion that the Chinese are helping the authorities in Burma to develop a nuclear capability?

[Lord Howell of Guildford]

I have no evidence or proof of that, beyond media suggestions. There is no established evidence or clarity on that matter which I can share with the House today.

[Lord Dubs]

My Lords, does the Minister agree that there is a little difficulty with the sanctions regime against Burma, which instinctively we would all be inclined to support? If the sanctions are working, they will leave a gap for the Chinese; yet if western companies go into Burma, they are accused of conniving with the regime. There seems to be no answer to that.

[Lord Howell of Guildford]

The noble Lord puts his finger on an obvious dilemma. The answer to it is responsible action by the Chinese. If China’s activity effectively undermines the impact of sanctions, then the noble Lord is absolutely right in his analysis. However, it does not seem to be working that way. The sanctions appear to be causing considerable difficulties, reflected in the continual, bitter complaints made by the generals and the authorities about them. They feel that they are both hostile and damaging to their nation and target those who are richer and more comfortably ensconced rather than the ordinary people of Burma.

Census

Wednesday 15th December 2010 Lords Chamber

Question

15:22

Asked by

[Lord Naseby]

To ask Her Majesty’s Government what proposals they have to change the national census due in March 2021.

[Lord Taylor of Holbeach]

My Lords, the development of alternatives to the traditional census is being taken forward by the National Statistician. She has established the Beyond 2011 project to look at this issue and will make proposals in 2014.

[Lord Naseby]

My noble friend’s Answer is interesting, but is he aware of the importance of consistency of census data during the past 200 years? The census is used by millions of our citizens to trace their ancestry, let alone by local and national government and other organisations which look at trends. Will he assure us that, whatever is looked at, we will get a census in 11 years’ time and that the Government will not rely on databases, which are notoriously inaccurate, particularly when one is trying to establish who lives where?

[Lord Taylor of Holbeach]

The census results are used extensively by many public and private sector organisations and by many private citizens for a wide variety of purposes. Continuity from one census to another is very important for understanding changes in society. However, I cannot give my noble friend any reassurance because it would pre-empt the outcome of the independent work being taken forward by the National Statistician.

[Lord Young of Norwood Green]

My Lords, does the Minister recognise the huge interest taken in the information contained in the census? Genealogy is a fast growing hobby which has the added benefit of encouraging the more mature of our citizens to engage with computers. The USA has released census information after 72 years without any apparent deleterious effect. In the light of this, will the Minister examine the current government policy of not releasing census information for 100 years?

[Lord Moser]

My Lords—

[Lord Taylor of Holbeach]

The House is very enthusiastic on this subject.

I thank the noble Lord, Lord Young, for his question. I understand that the restriction is traditional. The new project to look beyond 2011 will include all these aspects. It is particularly important for many people that they have an opportunity to trace their ancestors. We have to understand that we live now in an IT age; indeed, where is the written letter and where are our written documents? It is going to be much more difficult for historians of the future to find the evidence of our lives today.

[Lord Moser]

Perhaps I should declare an interest in that I used to be responsible for the census, I do not know how many years ago. There is no question but that the traditional census is of enormous importance for the country to understand our population, migration and much else. I am delighted that next year’s census is going ahead, as planned. That is good news. As to the future, however, there are now serious alternatives which have been followed and adopted successfully in a number of other countries. Most Scandinavian countries and Germany now use alternatives, which is what is on the cards.

[Noble Lords]

Question!

[Lord Moser]

Will the Minister assure us that following those alternatives, which are very complicated, will have full support and collaboration from the Government?

[Lord Taylor of Holbeach]

I thank the noble Lord, Lord Moser, for his question and contribution. He speaks from a great deal of experience in this subject. The most important thing is to emphasise that proposals will come to Parliament before any developments are taken forward. One of the difficulties with the current census is that it is usually way out of date by the time it is actually published. We live in a very mobile society, as we all know, and to try to get a dynamic model would produce considerable advantages in the allocation of resources and the ability of government properly to address the issues of the day.

[Lord Glenarthur]

My Lords, can my noble friend say how much the last census cost, what his estimate is for the next census, and whether he would dare hazard a guess at the cost of the 2021 census?

[Lord Taylor of Holbeach]

I do not have the figure for the last census but I have the current estimate for the 2011 census. It is £482 million, which is a very large amount. It includes the extrapolation of the figures and the development of figures after the actual census has been taken. It is believed that it could cost as much as £1 billion in 2021.

[The Lord Bishop of Bristol]

Given that the British public are very well able to answer questions on the census form for themselves, does the Minister agree that any campaign, such as that which I gather is being undertaken by the British Humanist Association and is specifically aimed at telling people how to answer the question about religious affiliation, is at best inappropriate, and at worst likely to distort census-on-census comparisons?

[Lord Taylor of Holbeach]

I am sure the whole House will agree that the integrity of the process is important. I note the right reverend Prelate’s observations.

[Lord Campbell-Savours]

My Lords, why cannot the census questions be amended in such a way whereby we can secure far higher levels of electoral registration, particularly when in the future we are going over to the new system of individual registration?

[Lord Taylor of Holbeach]

There is no interrelationship between the electoral register and the census at the moment. I do not know whether the National Statistician has considered that possibility, but both act under totally different powers vested in them by Parliament. The confidentiality of one list, as opposed to the other, must be respected.

[Lord Maclennan of Rogart]

My Lords, since the budget for the forthcoming census is approximately twice that for the census conducted in 2001, and since 50 per cent of the present costs are to be met by outsourcing, will the Government not assume that handing over to other agencies is necessarily going to be the way to make substantial public savings? Will the Minister also recognise that it is important for Parliament and the public to know what the considerations are that will be borne in mind when the recommendations are made in 2014? Can he ask that that be a fully transparent process?

[Lord Taylor of Holbeach]

I assure the House that it will be a fully transparent process. It is accuracy that lies at the heart of any census programme, and connected to that is the response rate. For the last census, the response rate was 94 per cent, but in some parts of the country it was lower than that. For example, in the Royal Borough of Kensington and Chelsea, it was as low as 68 per cent, and adjustments had to be made to ensure that the figures accurately reflected the situation. Much of the effort this time is going into ensuring that we have a much more substantial response rate and that in no part of the country is it less than 80 per cent. The hope is that with a more dynamic model that might be improved.

EU: Financial Assistance

Wednesday 15th December 2010 Lords Chamber

Question

15:31

Asked by

[Lord Willoughby de Broke]

To ask Her Majesty’s Government whether the United Kingdom’s participation in the European Union stability mechanism, and the proposed loan to the Republic of Ireland, are in breach of the “no bailout” clauses enshrined in the Maastricht treaty.

[The Commercial Secretary to the Treasury (Lord Sassoon)]

My Lords, Article 125 of the treaty, on the so-called “no bailout” clause, states that a member state,

“shall not be liable for or assume the commitments”,

of another member state. Article 125 does not preclude member states from providing loans to one another. The European financial stability mechanism was established under Article 122.2, which allows the Union to lend to a member state that is in difficulties or,

“seriously threatened with severe difficulties … or exceptional occurrences beyond its control”.

[Lord Willoughby de Broke]

My Lords, I am grateful to the Minister for that slightly evasive Answer. The phrase about matters “beyond its control” simply cannot be the answer to the difficulties encountered by Greece, Ireland or other potential bailout candidates. Beyond that, could the Minister say whether it is right, when British taxpayers are facing cuts in services and higher taxes, that £7,000 million should be poured into the eurozone black hole in their name?

[Lord Sassoon]

My Lords, I did not intend to be evasive but to give a factually correct Answer in respect of Articles 125 and 122. I was not asked whether we thought it was proper to use Article 122 in this way. As to whether it is proper to extend loans, to answer a question that the noble Lord did ask, we have decided, in the exceptional case of Ireland, which is our fifth largest trading partner, that it is in the interests of the UK economy to extend a bilateral loan to it. That does not mean that we will participate in any other permanent arrangements that may be put in place for the eurozone.

[Lord Lawson of Blaby]

Can my noble friend confirm that, as our right honourable friend the Chancellor of the Exchequer told the Economic Affairs Committee of this House very recently, it is Her Majesty's Government’s firm commitment to withdraw from the European Union’s financial stability mechanism at the earliest opportunity—obviously while wishing the European Union every possible economic success?

[Lord Sassoon]

I am grateful to my noble friend, because his question enables me to say that Article 122.2, under which the financial stability mechanism was set up, was originally intended to provide support for member states following natural disasters. It was European Finance Ministers, before my right honourable friend the Chancellor took office, who decided in May to apply that article to deal with the eurozone crisis at that time. It is absolutely the position that my right honourable friend who is now the Chancellor opposed the use of the article at that time and in that way. It is the Government’s position that this is a temporary solution and should absolutely not be the permanent way of doing things.

[Lord Eatwell]

My Lords, will the noble Lord confirm that the Government will themselves have to borrow the money to provide the loan to Ireland? Will he also acknowledge that the National Audit Office has now determined that any interest paid on such borrowing should be included in current expenditure? Will he therefore tell us how much this interest payment will increase the deficit, and whether any other expenditure cuts are to be made to pay for it?

[Lord Sassoon]

My Lords, first, there will be no hypothecated borrowing by the Government to back up—as far as I am aware—the loan to Ireland. Of course, the loan to Ireland—as and when it is drawn down—is subject to approval in legislation if and when it comes to your Lordships’ House. We might return to it over the next few days. The loan has to be approved by Parliament. It is then drawn down. Of course funds have to come from somewhere, but there is no intention to back that up with a specific loan.

It will not be for the Government to determine the accounting, but the intention is that the bilateral loan will carry an interest rate that is 2.29 per cent higher than the sterling seven and a half year swap rate that applies at the time. On this week’s figures, that would be an interest rate of 5.9 per cent, which would be considerably in excess of the UK Government’s borrowing rate. My understanding—as I say, it is not the Treasury’s decision—is that the net interest margin, which would of course be a gain because the receipts from Ireland would exceed the costs to the Exchequer, would indeed be a positive contribution on the fiscal balance.

[Lord Taverne]

My Lords, is it not inevitable that to make the rescue operations effective, and at the same time to avoid a treaty amendment, the stability mechanism will increasingly become an intergovernmental eurozone mechanism? What plans do the Government have to avoid the United Kingdom being increasingly bypassed in key decisions in the European Union?

[Lord Sassoon]

My Lords, I do not think there is any question of us being bypassed on key decisions in the European Union, as our participation in recent debates about Ireland and the wider crisis have demonstrated. It will be up to Europe to decide how the permanent arrangements are put in place. The October European Council resolved that there should be a crisis resolution mechanism, and there has been a verbal commitment that the UK will not be asked to be part of it.

[Lord Kinnock]

My Lords—

Devolution (Time) Bill [HL]

Wednesday 15th December 2010 Lords Chamber

First Reading

15:38

A Bill to make provision for the devolution of timescales, time zones and the subject-matter of the Summer Time Act 1972.

The Bill was introduced by Lord Tanlaw, read a first time and ordered to be printed.

Draft Road Safety (Financial Penalty Deposit) (Appropriate Amount) (Amendment) Order 2010

Wednesday 15th December 2010 Lords Chamber

Motion to Approve

15:39

Moved by

[Earl Attlee]

That the draft order laid before the House on 15 November be approved.

Relevant documents: 8th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 8 December.

Motion agreed.

Parliamentary Voting System and Constituencies Bill

Wednesday 15th December 2010 Lords Chamber

Committee (5th Day)

15:40

Clause 5 : Press comment etc not subject to spending controls

Amendment 39AA

Moved by

[Lord Falconer of Thoroton]

39AA: Clause 5, page 3, line 42, after “a” insert “referendum campaign”

[Lord Falconer of Thoroton]

My Lords, perhaps I will wait for those people to leave who are, disappointingly, not staying for the vigorous scrutiny of this Bill.

Clause 5 ensures that media outlets—specifically, newspapers, periodicals, the BBC, S4C in Wales and other licensed broadcasters—are not caught by the spending restrictions in place for the referendum, as outlined in the Political Parties, Elections and Referendums Act 2000. As yet another case of the consequences that befall legislation that is brought forth in haste and without time for pre-legislative consultation, Clause 5 was added to the Bill as a government amendment in Committee in another place.

The problems with the Bill, as introduced, were highlighted in the report of the Political and Constitutional Reform Committee of the other place, which brought to the attention of Parliament the ambiguous position of the media under the funding rules, as drafted. Unlike the spending limits that apply to elections, the definition of referendum expenses includes any material which provides general information about the referendum or puts any argument for or against the referendum question. As a result, for example, a newspaper editorial would constitute referendum expenditure.

I think that noble Lords on all sides of the Committee would be in favour of seeing as well informed a referendum campaign as possible, and newspapers are likely to play a vital role in that process. We obviously cannot have a situation where they are restricted from writing about the referendum, so the inclusion of Clause 5—or something like it—was necessary, but we believe that it can be improved. We are concerned that as a consequence of the planned combination of the polls on 5 May, there is significant potential for confusion in the audit of expenditure on elections. These two amendments seek to enforce the distinction between any broadcast or press advertisement relating to the referendum campaign and those relating to the local or the devolved elections.

Clause 5 refers to exceptions to the 2000 Act’s spending rules for the proposed referendum on the voting system for the House of Commons so Amendment 39AA, the first in this group, seeks to emphasise that the broadcasts which are exempted are “referendum campaign” broadcasts. Referendum-related materials and party election materials must be differentiated. Our second amendment, Amendment 39AB, picks up the same point. If political parties are allowed to use their election broadcasts to argue the merits of the referendum, that could lead to claims that the argument is being weighted more on one side than the other. Party election broadcasts should be about the elections for individual officeholders, not the referendum. If they are about the referendum, that leads to the possibility of the expenditure being distorted. The changes recommended by our amendments are important. It should be in the interests of all parties and none that clarity over the administration of press coverage and expenses during the election period is maximised.

15:45

I am happy to say that the Electoral Commission has commented on the second of our two amendments. It says that Amendment 39AB has the effect that party election broadcasts during the referendum period will not be broadcast if they contain references to the merits of different electoral systems or to the referendum. In other aspects of the Political Parties, Elections and Referendums Act 2000, such as those relating to party spending, different electoral events are considered as distinct for regulatory purposes and the Electoral Commission says that, to be consistent with this, election broadcasts should not be permitted to encourage people to vote for a particular referendum result. It also goes on to say that it is worth noting that Section 127 of the Political Parties, Elections and Referendums Act 2000 currently prevents broadcasters transmitting any broadcast where its purpose, or main purpose, is, or can assumed to be, to further a referendum campaign for a particular outcome other than by the designated referendum campaign broadcasts.

I am not sure whether the effect of Section 127 in the context of combined elections—combined with the referendum, which is the position here—would prevent the broadcasting of a party-political broadcast that also includes material that relates to or for the arguments in relation to the referendum campaign. Therefore, our second amendment says that party election broadcasts should not be broadcast,

“if they contain references to the merits of different electoral systems or to the referendum on the alternative vote system”.

That appears, as a matter of principle, to be supported by the Electoral Commission. I would be interested to hear the Government’s view both about this and about the effect, in this respect, of Section 127 of the Political Parties, Elections and Referendums Act 2000.

These are important matters because one political party is united; I say united, but that may be an overstatement. However, one political party has support for one electoral system, while two political parties—Labour and Conservative—are divided on the issue. Actually, I do not know if the Conservatives are divided on the issue as to whether they support AV or not. Having one political party that is supporting the change—even though it is described by their leader as a “miserable little compromise”—means that these issues of expenditure are important, because if the change is not made, or if the matter is not dealt with by the Bill, you can have one political party spending money on it and the others not being able so to do because they are divided, not because of the limits.

[Lord Grocott]

My noble and learned friend has more experience of reading these Electoral Commission reports than I have, but is it not unusual that the whole thrust of what the Electoral Commission is saying about his amendment seems to be almost entirely supportive of it but does not contain a recommendation? The Electoral Commission makes a clear recommendation for one or two of the other clauses that it is commenting on. Does he have any information that I do not have on the basis on which it makes an argument and then does not reach a conclusion, as opposed to the occasions when it makes an argument and does reach a conclusion?

[Lord Falconer of Thoroton]

First, I agree with the premise on which the question is based; when the Electoral Commission opposes an amendment—of anybody’s; this is not just to do with party—it says so. It does not, however, appear to support amendments; even when it gets right to the point where logically it should support them, it does not say that it is supporting them. All I can do is say that I note the same approach as my noble friend Lord Grocott. I have no idea why it does that.

[Lord Campbell-Savours]

My Lords, I support the amendment because it is vital that we have a level playing field wherever possible during the referendum campaign. Section 127 in the 2000 Act contains some ambiguity which really needs to be clarified. The way the legislation has been framed worries me because, if the 2000 Act might be misunderstood in this area, there is the possibility of expenditure bleeding over from political campaigns for the Scottish Parliament, or whatever, into the referendum campaign. The Conservative element of the coalition—I will keep drawing a distinction between the Conservative and Liberal Democrat elements in the coalition—may well want to place a different emphasis in that campaign. The Conservatives might wish to block electoral reform wherever possible and use their party election broadcasts to do so unless there are adequate safeguards built into the legislation. Equally, the Liberal Democrats might take a converse view and argue that they support electoral reform. They may wish, despite their reference to it being a miserable little compromise, to advocate the use of Queensland AV and use their money available for election broadcasts to promote that issue.

Can we have a clear statement in the Minister’s response today that he would not expect parties in the coalition to adopt that particular ruse, and that the legislation that will govern these matters is absolutely clear when the referendum campaigns take place?

[Baroness Liddell of Coatdyke]

My Lords, will the Minister cast his mind back to the 1979 referendum on the Scotland and Wales Bill, which was the first referendum on whether to establish a Scottish Parliament? He may recall that this issue was extremely significant during that campaign. It was then the position of the Labour Party in Scotland to support the yes campaign, although it was accepted that not every member of the party would take that position. Indeed, there was a Labour “vote no” campaign as well.

A party-political broadcast was made by the Labour Party at that time in support of party policy for a yes in the referendum, and was the subject of an interim interdict by the no campaign which resulted in it not being broadcast. I say this with some feeling because I produced and directed the said broadcast, and I thought it was rather good. The late Robin Cook and Mr Brian Wilson successfully secured an interim interdict. I see the noble and learned Lord, Lord Mackay of Clashfern, in his place; perhaps he would be able to elucidate for us whether or not that interim interdict still applies. I still think that that broadcast should be shown.

Lest your Lordships think that this is a fairly abstruse part of the legislation, I say that it is actually a quagmire. There will be differences, perhaps even in the Liberal Democrats, because there are those who do not accept that AV is proportional representation. Perhaps even the Deputy Prime Minister, who sees it as a miserable little compromise, might decide to seek to block any party-political broadcast.

I have two points. First, I say to the Minister that this is not about party-political differences, but about a point of real, practical differences that require attention. Secondly, I am not sure about the differences between English and Scottish law on these matters; I defer to my noble and learned friend Lord Falconer. I can remember some of my colleagues in the Labour Party in England being completely flummoxed by the fact that it was possible to get an interim interdict on a political party for this purpose.

It may be painful for the Minister to cast his mind back that far—as it is occasionally for me; I am just grateful that I can still do it.

[Lord Foulkes of Cumnock]

My noble friend has sent my mind even further back. Was it not the case that she, I and the late John P Mackintosh appeared on a party election broadcast in 1974, when we went rather further in that broadcast than Labour Party policy at the time and committed the party to Scottish devolution? Does that not indicate the power of party election broadcasts?

[Baroness Liddell of Coatdyke]

My noble friend brings back even more painful memories, because also taking part in that election broadcast was Mr Jim Sillars. In fact the late Professor John P Mackintosh, who by coincidence had been my professor at university, actually committed the Labour Party to full tax-raising powers for a Scottish Parliament as well and it took some years to finesse the policy afterwards.

While people probably go and switch on the kettle whenever there is an opportunity to watch a party-political broadcast, I urge your Lordships to take this matter particularly seriously. Seeking and opposing an interim interdict is an extensive and diversionary activity and I urge the coalition to take my noble and learned friend Lord Falconer of Thoroton’s amendment very seriously.

[Lord Soley]

I think that my noble friend should arrange a special showing of that election broadcast in the House; I would like to see what I missed. On a more serious note, I support my noble and learned friend Lord Falconer. He has hit on an important point. It is worth remembering that there are different electoral systems within the UK for different elections, so it needs to be made clear that we are separating out the referendum from the party-political agenda. The second amendment is particularly important in this respect. I would have thought that there was a strong case for the Government simply to accept that amendment, although they may want to reword it. I hope that in due course they will say that the principle that my noble and learned friend on the Front Bench is putting forward is right and ought to be protected.

[Lord Lipsey]

I support my noble and learned friend Lord Falconer’s amendment. The need for it reflects in part the baleful effects of the Government’s plan to have the referendum on the same day as other elections, because inevitably there will be a cluster of party-political broadcasts as part of the campaigns. That means that a ban of this kind is all the more essential because there will be a temptation at times for various parties to include the referendum in those broadcasts. Of course, it is possible that the referendum will not take place on 5 May—we shall see—but the circumstances in which it took place later could mean that the ability to use a party-political broadcast to campaign for or against AV could considerably prejudice the result of that referendum.

Let us take a case whereby the referendum is held at a time when the coalition has broken up, which seems a more likely prospect today than it would have done about a fortnight ago. In that circumstance, the Conservatives would no longer have any inhibition about campaigning flat out for what they believe in, which is that AV is a bad thing, and they could well wish to devote a party-political broadcast—or party-political broadcasts, come to that—to smashing into AV, if only in the hope of defeating their erstwhile friends in the Liberal Democrats on something that they greatly want.

The idea of party-political broadcasts, although they are propagandist things, is that they are balanced; everyone gets a go at one, so they cancel each other out. Within a referendum campaign, however, to allow for party-political broadcasts arguing one side of the case where it is a matter of chance whether or not there is a party-political broadcast arguing the other seems to be an extremely unfair way to conduct the campaign. I therefore support my noble and learned friend’s amendment.

[Lord McAvoy]

My Lords, I, too, support the amendment of my noble and learned friend on the Front Bench. I shall start with my usual obsession and say that, on reading the amendment and indeed the Bill, I was motivated by my usual and, I would say, well founded lack of trust in the behaviour of Liberals in these matters. My noble friend Lady Liddell has mentioned various referendums—or referenda—but, being parochial and from the Royal Burgh of Rutherglen, I shall bring it down to the Royal Burgh level.

As I have mentioned previously, we had a local council campaign regarding local government reform in 1994-95. It was an all-party campaign. Everybody behaved themselves, except guess who? We had the local Liberals trying to slip in leaflets and bits about themselves as if the campaign was somehow theirs. It caused great annoyance among the rest of the voluntary committee and they were reprimanded.

No doubt somewhere in the Chamber somebody will jump up to say, “How parochial and petty”. I plead guilty to that. However, I am further reinforced in my position on this amendment by comments from my noble friend Lady Liddell. I have an awful guilty feeling that, as part of the Labour no campaign, I contributed to the finances to seek the interdict that she referred to. I am quite sure that she will have a word to say to me later about that.

As my noble friends Lady Liddell and Lord Foulkes pointed out, the election broadcast compounded or, even worse, took advantage of pushing the boundaries of what were the rules and what was policy. Though it is absolutely wrong, the temptation will always be there. This should be very well controlled in order to make sure that election broadcasts are not hijacked for narrow political purposes.

16:00

[Lord Grocott]

The two amendments relate to an extremely important part of this Bill. The Government were obviously quite right to have a clause in the Bill that, as far as broadcasting is concerned, deals with fairness in a referendum. However, I am glad that we do not have a written constitution. I would be very concerned if someone tried to hand over the way in which we run our country from a constitutional point of view to the lawyers.

I can see that the issue of referendums and how we conduct them is important. I will certainly not go down memory lane, apart from remembering the debates about setting up the first referendum, on the Common Market, in 1975. There were long debates in Parliament about lots of these kinds of issues—about how to make sure that it was fair. I am absolutely certain that we did not get it right on that occasion; we certainly did not get it right from my point of view because I voted no. There is no doubt that each time these things are discussed, we refine and improve the rules relating to referendums.

I do not know what speaking notes the noble Lord, Lord McNally, has, but I hope that he recognises the significance of this, not least—and perhaps in particular—because, if there is any logic whatsoever in the constitutional changes that are proposed by this Government and if there is a referendum on the voting system in the House of Commons, there must surely be a referendum on any proposal to scrap the House of Lords, whichever way one considers the arguments, although the Committee will be relieved to know that I do not have the slightest intention of going into those arguments now. Presumably, if we get this clause right, when another Bill comes down the track that provides for a referendum on an even bigger part of our constitution, we will have rules about fairness that all of us can agree to. We are heading in a direction, whether we like it or not, where constitutional changes will be referred to referendums. I hope that the Government will look at these amendments sympathetically.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, I am grateful to the noble and learned Lord, Lord Falconer, for bringing forward this amendment. I agree entirely with the last point that the noble Lord, Lord Grocott, made that the pattern of using referendums since the 1970s has been to learn, modify and improve. That will probably go on.

The noble Baroness, Lady Liddell, gave a very good example of an injunction being brought against an election broadcast. I am always fascinated by the difference between English and Scottish law. When I ask, “What is the difference?”, the answer that I get in the Ministry of Justice is often, “They do it much better in Scotland”. That is just a passing observation. I am disappointed that the noble Lord, Lord McAvoy, still does not trust the Liberals. I really thought that we were beginning to bond. I will have to do more work on my charm offensive.

The noble and learned Lord, Lord Falconer, was quite right: this clause was brought in as a specific amendment suggested by the Political and Constitutional Reform Committee to address the guidelines for broadcasters. There is a principle to consider. Would it be right for party election broadcasts for the local and devolved Assembly elections, which will take place on 5 May, to refer to the referendum and/or make any comment on different voting systems? There is an argument that, as a final strap line, a broadcast could say, “Use both your votes on Thursday”, or whatever. We recognise that there is an issue to be discussed. As the noble and learned Lord, Lord Falconer, said, the Electoral Commission has made some comments on this as well.

I am advised that there are defects in Amendment 39AA that would bring in ambiguity. We could perhaps test that. On the second amendment, I suggest again that the noble and learned Lord does not press it and that we have further discussions to see whether it can be improved and clarified. Before the noble Lord, Lord Campbell-Savours, breaks open the champagne, I should add that my speaking notes contain lines that I have not heard since “Beyond the Fringe”. They say: “What I am saying does not mean that I agree with his amendment, but nor should it be assumed that I disagree with the amendment”.

[Lord Bach]

I am sorry that the noble Lord has not seen that since “Beyond the Fringe”; I saw it many, many times.

[Lord McNally]

We all know that the final line of the “Beyond the Fringe” sketch was, “But neither should this be taken as an abstention”. I suggest to the House, quite genuinely, that—as the noble Baroness, Lady Liddell, reminded us—getting this wrong could cause all kinds of trouble with the best of intentions.

[Lord Foulkes of Cumnock]

Could the noble Lord, Lord McNally, be doubly helpful? It occurred to me as the debate was taking place that we have not touched on the internet. That is now a far more powerful medium in elections and campaigns. I wonder whether the discussions that he is proposing could encompass the internet as well.

[Lord McNally]

I am sure that that intervention has been noted. Indeed, I am looking forward to an e-mail on Monday that says: “Sorry, can’t get down today. Snowed in. G Foulkes”. Perhaps I am hoping for too much. As I say, I hope that the noble and learned Lord, Lord Falconer, will take what I have said in the spirit in which it is intended. As the noble Lord, Lord Grocott, said, we refine these issues each time. The noble Baroness, Lady Liddell, rightly reminded us of how things can go badly wrong. We would like to talk further about this.

[Lord Falconer of Thoroton]

If the noble Lord is saying to me, “In principle I agree about the problem that you have identified, so let’s talk about how we solve it”—the problem being that no political party should be allowed to use its political broadcast to promote or demote any of the electoral systems at issue—I am more than happy to wait until Report stage. The noble Lord read out parts of his brief in a jokey manner, but that gave him complete room to say, “No, we are not going to make any changes”. Therefore, I need something a little more than what he said. I need an indication that in principle he accepts the broad problem that we have identified.

[Lord McNally]

I am afraid that I cannot do that. I am offering to talk very seriously about this. I say in a strictly non-jokey way that there are issues that we have to look at if we are not to fall into innocent traps, as the noble Baroness, Lady Liddell, reminded us. There would have to be discussions without preconditions on either side. If the noble and learned Lord wishes to press the amendment, I shall resist—and that would be a mistake for both of us.

[Lord Mackay of Clashfern]

My Lords, it is worth noting that the clause referred to by the noble and learned Lord, Lord Falconer of Thoroton, is from the general statute dealing with referendums. This is not a question for just this referendum; it may be a question of whether what has already been put into the general procedure is sufficiently accurate. I think that I am right in saying that at the moment a party-political broadcast in connection with a referendum is allowed, so long as that is not the principal or main purpose, or some such phrase, of the broadcast. It may be that what the noble and learned Lord, Lord Falconer, and others have identified is a question of whether or not that general provision is wise or whether it should be modified. The question may go somewhat further than just this referendum and that issue needs to be looked at.

[Lord Davies of Coity]

Perhaps I may ask a question. The Minister said that he would have to resist the amendment if it was pressed. Does he agree that that would not remove the problem and that the Government would still have to deal with it even if they won on a Division?

[Lord McNally]

That is quite right and we would deal with it. However, I am suggesting that we have discussions about it without preconditions. I am grateful for the intervention of my noble and learned friend. He raises another issue that we can take on board when we look at the matter. I am glad that the noble Lord, Lord Rooker, is not the only one who supplies lifeboats, although he is not here today.

[Lord Wills]

I am afraid that I am baffled by the Minister’s position. Perhaps that is what he intends. Will he clarify exactly why he is resisting the proposition put forward by my noble and learned friend Lord Falconer?

[Lord McNally]

It is because I want to be able to discuss this, look at its implications and try and get it right. I do not want to make these kinds of commitments over the Dispatch Box. After all the complaints of the Opposition on this, my good will wears thin. When a Minister makes a straightforward offer to look at a real problem and get it right, I can only say that one begins to despair—although perhaps not for a few hours yet. No, I will not really despair. The offer is there. I hope and I think that we can get this right.

[Lord Swinfen]

Can my noble friend confirm for me that, if this matter is decided on a Division, the noble and learned Lord, Lord Falconer of Thoroton, would be unable to bring it back at a later stage? It may help the noble and learned Lord when he is making up his mind what to do.

[Lord McNally]

That is perfectly right.

16:15

[Lord Falconer of Thoroton]

My Lords, I am grateful for all the interventions. I am also grateful to the noble and learned Lord, Lord Mackay of Clashfern. I completely agree with what he says. Section 127 of the Political Parties, Elections and Referendums Act 2000 currently prevents broadcasters from transmitting,

“any broadcast whose purpose (or main purpose) is or may … be assumed to be … to further”,

a referendum campaign. I agree with him that there are wider ramifications than simply in relation to this. I completely trust the noble Lord, Lord McNally, so I am more than happy to accept his assurances and I am more than happy to discuss the matter in the spirit in which he has made the offer. I am absolutely sure that the two of us will be able to reach a solution that is acceptable to both of us. Furthermore, I am grateful to the noble Lord opposite. I should tell him—although I am sure that he will not believe it—that I was aware that, if I pressed the amendment to a vote, I would not be able to bring the matter back, but I think that the Committee is grateful to him for reminding us of that. Therefore, I beg leave to withdraw my amendment.

Amendment 39AA withdrawn.

Amendment 39AB not moved.

Debate on whether Clause 5 should stand part of the Bill.

[The Chairman of Committees (Lord Brabazon of Tara)]

My Lords, the Question is that Clause 5 stand part of the Bill.

[Lord Campbell-Savours]

My Lords, I should like to ask the noble Lord, Lord McNally, a question. I am not seeking to delay. The noble Lord has agreed to consider the amendment, which is a generous concession. What is the process within the department? That has implications for the Bill more widely.

[Lord Tordoff]

Will the noble Lord forgive me? It seems to me that at the moment we do not have a Motion before the House to debate. Until we get to that stage, people should not be making speeches.

[Lord Campbell-Savours]

I am sorry that I could not hear what the noble Lord said, but I am sure that I will be kept in order by the Lord Chairman.

[The Chairman of Committees]

My Lords, I did put the Question that Clause 5 stand part of the Bill.

[Lord Campbell-Savours]

I am sorry about that. What is the process within the department? The noble Lord will take back the proposal made by my noble and learned friend on the Front Bench. Are there additional consultations within each party and within each element of the coalition about an amendment that might be further considered; or is it simply dealt with in the private office? I am trying to understand to what extent each element within the coalition will be drawn into discussion on the acceptability of any amendment which the Minister might be prepared to consider.

[Lord Snape]

Perhaps I may detain the Minister and the House for just a couple of minutes on the clause stand part debate. I hope that we can continue in the spirit that the Minister extended in his response to my noble and learned friend on the Front Bench. Does he agree that this debate illustrates the problems of holding the referendum on the same day as the other elections? It is inevitable that one matter will spill over into another. As my noble friend Lord Grocott reminded your Lordships a few moments ago, those of us old enough to have participated in the 1975 referendum campaign well understand the bewilderment expressed by people, who were not necessarily politically involved or that concerned about the result of the referendum, at the way these arguments crossed party boundaries. Indeed, I hope that the noble Lord, Lord McNally, will accept that it would be impossible completely to restrict expenditure in the way that the previous amendment, so ably moved by my noble and learned friend, tried to do.

I hope that he will look carefully at that amendment. Again, in the spirit in which this debate has been conducted today, I hope that he will see the sheer difficulty, if not impossibility, of doing all these things on the same day. I hope that, even at this late stage, the Government will reflect on this. I am seeking to help out his party. I do not know how to support AV. I am firmly in the first past the post camp. However, from his own party’s point of view, it is inevitable, given the economic situation and the actions of Her Majesty’s Government—I will not go into them here—that there will be some degree of unpopularity for the Liberal Democrats. That will spread over into the whole debate about the electoral system that we are to adopt, and I am quite relaxed about that.

I have a great deal of affection for the noble Lord. After all, he used to represent my home town—with a different political interest, of course, but let us put that to one side. If we are to have a sensible referendum and a sensible debate about the matters that we should be discussing, rather than the ins and outs of economic or coalition policy, then the noble Lord should look carefully at the amendment. I know that he has promised to do so but perhaps he could go a little further and adopt the very sensible suggestion made by my noble and learned friend.

[Lord Lipsey]

My Lords, I rise briefly to ask a further question to which I hope the Minister will address himself. The clause provides protection against something in a newspaper, other than an advertisement of course, or in a periodical or in the broadcasting media specified, being regarded as election expenses, but it does not say anything about expenses incurred via the internet. Does the protection extend to that medium?

[Lord Lamont of Lerwick]

The question about the internet is very important. Following on from the noble Lord’s point, can the Minister comment on information about the referendum that may be made available by the Electoral Commission on the internet? The Electoral Commission is entitled to issue neutral educational material concerning the referendum question but, in practice, I think that it is extremely difficult to be absolutely sure of the neutrality of any such material in such a presentation. The materials put out by the authorities in the New Zealand referendum led to considerable controversy, as there was an argument that, in listing the pros and cons, they were not impartial. I do not want to go on about this but I should be grateful for the Minister’s comments because the point about the internet and the Electoral Commission is very important.

[Lord Maxton]

My Lords, this is the first time that I have spoken in these debates. On the day on which we celebrate the fifth anniversary of the launch of YouTube, I think it is right that we raise the whole question of the internet and particularly that “channel”, although that is not the right word. Anyone could place a video on YouTube expressing their views in the hope that many people would watch it, and that could change the nature of the way in which we voted if there were not some way of controlling it. To be honest, it is extremely difficult to control what goes on YouTube but there certainly has to be something in the legislation that at least tries to do so.

[Lord Falconer of Thoroton]

My Lords, I indicated in my remarks on the first group of amendments that I proposed to Clause 5 that the clause was introduced to deal with the problems identified by the Political and Constitutional Reform Committee in the other place. In principle, we think that it is a good thing, although other issues need to be dealt with, including the point about the internet made by the noble Lord, Lord Lamont.

I have one question for the noble Lord in relation to that. On the face of it, any expenses incurred in making a broadcast for a referendum—for example, if you got Steven Spielberg to produce it and my noble friend Lord Puttnam to direct it, or the other way round—would not count as expenses. Is that really the Government’s intention?

On a general point, can the Minister say what principles underlie Clause 5 and, in the light of those principles, what is the answer not just to the questions that I have raised but to those raised by other noble Lords?

[Lord McNally]

My Lords, I thank noble Lords for their questions. The principle is that the clause was inserted in response to the committee in the other place asking for clarification. We have put Clause 5 into the Bill to ensure that media outlets are not caught by spending restrictions that are in place in terms of publishing information about the referendum. The media play a vital role in building public awareness and presenting facts and opinions on the matters raised by the poll. This amendment ensures that the media's ability to carry out that role and to exercise the usual freedom of the press and broadcast media is not restricted in any way. That was our intention.

On the point that the noble and learned Lord has just raised, I will have to check again with the Electoral Commission, but I believe that if in making a referendum broadcast, one or other of the campaigns was to indulge in the kind of expenditure to which he referred, that would be counted as expenses.

[Lord Howarth of Newport]

Does not this whole debate point up very clearly the absurdity of holding the referendum on the same day as other elections? It will be completely impossible to police the distinction which the Government seek to make between coverage that is referendum-related and coverage that is election-related. What if a programme or an article discusses both those topics together? It cannot conceivably work. My noble friend Lord Snape reminded us of how perplexing and confusing voters found it in 1975 when they found politicians of different parties on different sides of the argument. If I remember rightly, that referendum was not held on the same day as other elections; but it still caused people to scratch their heads. It will be completely impossible to sort this out if the two processes are carried forward on the same day. Will not the Government now accept that?

[Lord McNally]

I do not mind the constant argument about how people are going to be confused by this, but one lesson that we have learnt since 1975 is that a referendum and elections can be held on the same day, because we have done it. There is no reason why the two cannot be run together. To be absolutely clear, the extra expenses would come under Schedule 14.

[Baroness Corston]

Is the Minister right to say that the 1975 referendum on what was then the Common Market was held on the same day as the local elections?

[Lord McNally]

I did not say that, but that gives the opportunity for another intervention.

[Lord Maxton]

In that case, as the noble Lord agrees that it was not the 1975 referendum, which specific referendum was it? When was it held and what election was it? It was certainly not in Scotland, where there is a very important election on 5 May next year, even if he may consider the local elections down here not to be very important.

[Lord McNally]

I did not say that it was in Scotland. As my noble friend just reminded me, the London elections were held on the same day as a referendum. Come on, let us carry on.

If there were advertising on the internet, that would be caught. Again, I am quite willing to look at the issue of the internet. I do not accept the intervention by my noble friend Lord Lamont. I think that the Electoral Commission has acted impeccably, and I have every confidence in it. I was one of those who supported from the very beginning the idea of experienced politicians serving on the Electoral Commission. Happily, all three major parties plus Mr Reid from the SNP now serve on the Electoral Commission, and I think that it is all the better that there are people who have had direct experience.

As I said, I do not think that there is any problem about this. As was said during debate on the amendments, we will look at the specific points raised by the noble and learned Lord, Lord Falconer, in his second amendment. What happens in the coalition is a matter for my right honourable friend the Deputy Prime Minister, who is handling this from the Cabinet Office with my honourable friend Mr Mark Harper. I will, as always, report to them on the debates in this House. We will then discuss, on a governmental basis, our response to them. It must be to the great depression of the Opposition to know that we do this in a seamless fashion which produces none of the frictions alluded to by the noble Lord, Lord Campbell-Savours.

16:30

[Lord Campbell-Savours]

I am not trying to delay matters; I really would like to know how this works. The noble Lord said that it is dealt with by the Deputy Prime Minister and Mr Harper, but is there consultation within the political parties about concessions that they might be considering making? This is very important. It is about political parties in many ways.

[Lord McNally]

I have every confidence that those in government know how to consult the political parties they come from. I see no problem here and I have certainly not encountered one. As will have been noticed throughout the debate, on my Benches my noble friends Lord Tyler and Lord Rennard are both plugged into and expert on these matters for the Liberal Democrats. The noble Lord’s concern is touching, but I can assure him that it is not a problem.

[Lord Howarth of Newport]

When Ministers consult with political parties about the processes that it might be appropriate to incorporate into this legislation, can the noble Lord assure us that they seek to act in a spirit of disinterestedness? After all, it would not be appropriate for the Government to stack the system so that it would benefit what the parties perceive to be their particular interests. Can he assure us that the Government’s hands are clean in this process?

[Lord McNally]

Absolutely clean. The problem about this, and the reason we are having such difficulty in convincing the Benches opposite, is that our whole aim is to get fair votes on the basis of fair constituencies, which obviously discomforts them.

[Lord Snape]

Can the Minister be more specific? He has called upon, so he says, the best brains in the Liberal Democrat Party to assist him in these matters—and I am sure that they will be joined by the best brains in the Conservative Party, the Civil Service and everyone else—but can he give an inkling as to how those best brains will be able to differentiate between the expenditure on local and regional elections and referendums? It is a simple question. Just give us a clue.

[Lord McNally]

I suggest that the noble Lord looks at the 2000 Act. The schedules are mostly based on existing law. Elections were conducted like this before so perhaps he should find some experts in the Labour Party to help him with his problem. I do not see the problem that he is raising—or the problem that I suspect the noble Lord, Lord Foulkes, is about to raise.

[Lord Snape]

Regrettably the Labour Party is not in government; he and his colleagues are. It is a simple question and it is no good referring back to the 2000 Act. As far as I am aware, elections have not been held on the same day as a referendum—ever—in the United Kingdom. The noble Lord referred to the London elections, the assembly and the mayoral elections, but this is a completely different situation, with regional and local elections and a national referendum about the voting system being held on the same day. Can he quote a precedent for this—or at least give us some idea of how the Government are going to tackle the problem of limiting expenditure in these circumstances? So far he has failed to do so.

[Lord McNally]

I may have failed to convince the noble Lord, but we are going to do so on the basis of existing legislation and the provisions of this Bill.

[Lord Foulkes of Cumnock]

I am slightly confused about the reply that the Minister gave to my noble friend Lord Campbell-Savours. Which is the lead department for this Bill? Is it his department, the MoJ, or is it the Cabinet Office?

[Lord McNally]

I am surprised. The Bill has been through the House of Commons and the noble Lord, Lord Foulkes, has intervened so many times. It is the Cabinet Office. I am here today in my capacity as Deputy Leader of the House of Lords, taking responsibility for Cabinet Office business.

[Lord Foulkes of Cumnock]

I asked the question because I knew the answer. My noble friend Lord Maxton said, “Don’t ask a question if you don’t know the answer to it”. What I am not clear about is this: whenever we raise issues, the noble Lord, Lord McNally, has to go back to the Deputy Prime Minister to get agreement. What happens if he is taken ill or is abroad at some major conference or something like that?

[Lord McNally]

I do not know. That would really stump us. I would probably have to go and ask the noble Lord, Lord Foulkes, what happened when he was in Government.

[Lord Elystan-Morgan]

I am in no way seeking to be obstructive but what is the current view of the Scottish Parliament and the Welsh Assembly on holding both elections on the same day? I am aware that certain representations were made months ago but wonder whether they still represent the views of those two bodies.

[Lord McNally]

This is a piece of legislation for this Parliament. We are in contact with both the Scottish Parliament and the Welsh Assembly but we are bringing this Bill before this Parliament and I suggest we get on and do that.

[Baroness Liddell of Coatdyke]

My Lords, I am not seeking to make this an even more protracted discussion but the intervention of the noble Lord, Lord Snape, took me on another saunter down memory lane. One of the issues that confronted the referendum in 1979 was that some non-political players became involved in it—business leaders and trade union leaders—some of whom put a considerable sum of money into their own personal campaigns, taking on media advisers, et cetera. I am going to ask a question to which I do not know the answer. How would this legislation unscramble that kind of expenditure? You may well have someone intervening in the referendum campaign and, as a side swipe, having a go at a political party that was standing in that election in Scotland. This is about the disentangling of non-political players from the referendum campaign in terms of their expenses and the impact that this might have on the outcome. Sorry, it sounds very convoluted, but I can see it being a nightmare, particularly when election agents have to submit their election expenses.

[Lord McNally]

The Electoral Commission has very clear rules. We have laws about electoral expenses. If there were those kinds of problems that the noble Baroness suggests, I am sure they would be challenged at the time. It might speed things up if people did not preface their interventions by assuring me that they were not trying to delay matters and just got straight into the question.

[Baroness Liddell of Coatdyke]

I am sorry to press the noble Lord further but I know of a scenario in 1979 where some business leaders became involved in the referendum campaign and put considerable sums of money towards it. I can see an actual situation emerging. I will not name the people here but I can think in my head who they would be and who would use it as an opportunity not to take a swipe at my party but to take a swipe at the noble Lord’s party. It is not clear in electoral law how those expenses will be allocated.

[Lord Mackay of Clashfern]

Before the noble Lord seeks to answer that question, this debate has got to a stage where people seem to have forgotten that a statute dealing with referenda was passed by the previous Administration. It deals with all of these questions in considerable detail. There are some additional questions because as time has gone on more difficulties have emerged—for example, in relation to the internet—but there are already considerable provisions in the law about that. It is important to remember that this debate should be about this particular Bill and its particular circumstances.

[Lord Howarth of Newport]

Do we not need to learn the lesson from, for example, the referendum on a regional assembly in the north-east, where the no campaign was led by business interests? That campaign was relatively well-funded and was clearly against Labour Party policy. In effect, therefore, it was significantly in the interests of the Conservative Party. Does the Minister feel that the lessons of that experience have been adequately absorbed and that the existing legislation to which the noble and learned Lord, Lord Mackay of Clashfern, referred satisfactorily covers such circumstances? Or does he feel that the legislation governing referendum expenses needs to be brought up to date in the light of that example of how money can be spent in a political cause but not overtly by a political party?

[Lord Maxton]

The noble and learned Lord, Lord Mackay, mentioned the internet. Perhaps I may give an example to follow on from what my noble friend Lord Howarth said about business people. Sir Sean Connery is a major benefactor of the Scottish National Party, but he is not a taxpayer in this country. He is not therefore bound by rules on expenditure if he is spending that money on advertising via the internet rather than by other means. I presume that there will be other business people, some from the Conservative Benches, who may be in the same position; that is, they are non-taxpayers but can use their money to influence the referendum through the internet in a way that is uncontrollable by the Act.

[Lord Lipsey]

A little while ago, Members intervening from this side said quite reasonably that they were not trying to delay proceedings by more than they needed to and were being as succinct as they could. The Minister said that it would speed things up if noble Lords would stop saying that. Will he consider an offer whereby we stop saying that if he stops implying that this side is trying to filibuster on this Bill, when it is trying to subject it to correct and proper parliamentary scrutiny?

[Noble Lords]

Hear! Hear!

[Lord McNally]

I will leave it to the general public to read these debates and make their own judgment about that. Just as on the broad principle of the Bill, of fair votes in fair constituencies, we are eager and willing to take our case to the public. Let those who read Hansard be the judge.

I have explained why Clause 5 is in the Bill; I have listened to an amendment suggested by the noble and learned Lord, Lord Falconer, and, without commitments on either side, have offered to discuss it further; and I have listened to a number of other points, including the internet issue, which I think will be a subject of continuing discussion in the regulation of our parties. However, a point which has been accepted and which I made in responding the noble Baroness, Lady Liddell, and others is that we have continued since the 1970s to learn from our experiences and to refine and improve regulation. I pay tribute to the party opposite for taking, with our support, a great number of measures to implement controls on spending and regulate elections via the Electoral Commission. Many of these matters are of great interest, but I think that Clause 5 should stand part of the Bill.

Clause 5 agreed.

16:45

Clause 6: Control of loans etc to permitted participants

Amendment 39AC

Moved by

[Lord Falconer of Thoroton]

39AC: Clause 6, page 4, line 3, after “15A” insert “and as if the Schedule set out in Schedule (Limits on referendum expenses by permitted participants) to this Act were inserted into that Act as Schedule 14A.”

[Lord Falconer of Thoroton]

My Lords, I wish this was as simple as the noble and learned Lord, Lord Mackay of Clashfern, said. The difficulties in this area spring from the inappropriateness of parts of the Political Parties, Elections and Referendums Act 2000 and its rules on expenditure as applied to this particular circumstance. I referred in the first set of amendments to the effect of those rules, which would make editorial material in newspapers part of the expenditure and show how inappropriate they are.

This next set of amendments shows another inappropriateness. I am very glad that the noble Lord, Lord Lamont, is in his place, because the amendments that I propose in this group were prefaced in remarks made by the noble Lord in the debates on the PPERA—if I may call it that—in 2000, where he emphasised the inappropriateness of imposing limits on political party expenditures in referendums when the campaigns on referendums cut across political parties. I fear that these amendments are needed because of the inappropriateness of the rules to which the noble Lord referred.

Limits on spending by permitted participants in the planned referendum on this voting system will be guided by those rules. Clause 6 of the Bill under discussion today makes it clear that the rules will apply with some modifications. Clause 6, and the inclusion of Schedule 9 to this Bill as a supplementary Schedule 15A to the PPERA, explain these modifications and centre largely on providing detailed rules to control the funding of, and spending by, permitted participants who are not registered parties: in other words, individuals, organisations, companies, trade unions and so on.

Amendment 39AC paves the way for Amendment 126 and is presented to the House as a further modification of the PPERA 2000 rules. As debates on the PPERA back in 2000 exposed, the referendum campaign expenditure limits, which were put into law, are potentially misguided. The PPERA states that in the case of registered parties, spending will be limited according to the share of the vote received by an individual political party at the last general election. Schedule 14 of the PPERA, which our Amendment 126 seeks to replace, dictates that if a party received between 20 and 30 per cent of the vote, it can spend up to £5 million. Between 10 to 20 per cent of the vote, the limit is £4 million. The scale goes down to £500,000 for any party that polls below 5 per cent of the vote; £500,000 is a large amount for a single permitted participant to be able to spend, even if that participant is a party of many members.

As the noble Lord, Lord Lamont, said in the debate on the PPERA on 3 April 2000:

“The key mistake the Government have made is to define the caps by reference to political parties”.

He explained that by saying:

“One reason that we have referendums … is to settle issues which cut across party lines. While parties are essential to general elections in order to simplify choice on many different issues, referendums are single issue campaigns”.—[Official Report, 3/4/2000; col. 1133.]

The noble Lord is, as ever, wise. It is right that the designated yes and no campaigns are permitted to spend equal amounts of money in the referendum campaign. By being designated as the lead campaigners, they are the mouthpiece on each side of the yes/no campaign. However, political parties should not be able to spend this much. They should not dominate the campaign. If a political party has a particular view, as one political party has here, in practice it will spend all its money—which will be £5 million, if it is 20 to 30 per cent—in favour of the particular voting system that it supports. That allows much more money to be spent on one side of the campaign, because a political party supports it.

We therefore propose Amendment 126, which Amendment 39AC paves the way for. In Amendment 126, which is almost the last in the group and is on page 28 in the up-to-date Marshalled List, we reduce the amount that a registered political party can spend on the referendum from £5 million to a maximum of £500,000. Some people may think that that amount is too large, but it deals with the very point that the noble Lord, Lord Lamont, raised, which is a good point: namely, that we should look at these campaigns on the basis not of political parties but of whether there is going to be a level playing field. If we allow a political party to spend as much as £5 million, we give a huge advantage if any one of the political parties supports one or other of the particular voting systems.

Finally, there is a separate point in our schedule. The PPERA permits all other permitted participants designated by the Electoral Commission—those that are not designated as the lead yes or no campaign or political parties—to spend £500,000. Frugal times or not, that is a large amount of money. We are concerned that the rules as contained in the PPERA, which are due to apply by way of Clause 6 of the Bill to the planned referendum on the electoral system, would therefore allow a huge range of permitted participants to seek to get the limit of £500,000 and thereby allow one side or the other in effect to get around the limits.

Our amendment makes essentially two points: not to refer to limits by reference to political parties, because that fails to understand the point of the referendum; and not to have a system that has such a high limit—namely, £500,000—for permitted participants, as that allows for abuse. That is why we propose Amendment 39AC, which would pave the way for our proposed new Schedule14A, which would be inserted into the PPERA. That would ensure a level playing field. I am afraid that this problem is another indication of the unsuitability of the PPERA rules as they apply to referendums. I beg to move.

[Lord Lamont of Lerwick]

Will the Minister comment, at least for my benefit, on one aspect of what the noble and learned Lord, Lord Falconer, said? How will the Electoral Commission distinguish between the designated lead organisation and other organisations and decide whether they are truly independent of it? My noble and learned friend Lord Mackay was quite right to remind us that the rules in the PPERA were set down for referenda. None the less, all sorts of problems come with these rules. That is the point that some people on the other side were genuinely making, and that I was making when I intervened earlier. In many ways, these rules are inappropriate.

I am particularly worried about how you identify the designated lead organisation. The very fact that there is a body in this country that actually decides that there is a permitted lead organisation in a campaign makes me quite nervous. It gets rather close to the situation recently when the United States Supreme Court overthrew many of the rules relating to campaign contributions because they were interfering with the freedom of individual citizens to spend their money and support causes they wanted. I can hardly remember what I said a decade ago, despite the noble and learned Lord, Lord Falconer, reminding me, but one of the points that I raised then was the interference, as I saw it, in certain basic freedoms: that a government organisation will decide who the lead organisation is, and that other organisations will be subject to this or that control.

These rules, frankly, made me very uneasy at the time, and I remain uneasy. Will my noble friend tell me how he envisages that the Electoral Commission will distinguish between expenditure of the lead organisation and whether another organisation is genuinely independent or not? Some of these organisations are very interconnected.

[Lord Rennard]

On a point of clarification, does the noble Lord accept that the Electoral Commission is absolutely not a government organisation, that it is independent from government and can therefore do something that perhaps a Government cannot do?

[Lord Lamont of Lerwick]

Of course it is independent. That is how it was set up. I intervened earlier with a comment about the Electoral Commission that I was rather nervous about making, and I hesitated to make the comments directly; in some of the evidence presented to the Constitution Committee by at least one academic, the independence of the Electoral Commission on this issue of electoral reform was brought up. I am not saying I agree with that, but it was brought up—it was mentioned in a submission to the Constitution Committee by a well respected academic. When bodies exist on a permanent basis, such as the Electoral Reform Society, what constitutes routine non-campaign expenditure for them and what has to count as an item of spending in the campaign? At what point does academic and educational activity become a form of campaigning covered by the PPERA? I am afraid that these rules are full of holes and really quite impractical.

[Lord McNally]

My Lords, on the question of how these rules are applied, I suspect that the noble Lord, Lord Lamont, and I have a philosophical difference. As I said earlier, I supported the 2000 legislation and the setting up of the Electoral Commission. I am not in favour of the untrammelled process of elections. You need rules and checks and balances if you are going to offer a level playing field in these matters. Much of what was done during the period of the previous Government was worthy of support in making our electoral systems fairer and more transparent in funding and process. What is clear about the process is that much of what is in the Bill, although it is a fairly thick Bill to look at, and certainly what is in this clause, rests on tried legislation that is already in place.

[Lord Howarth of Newport]

As my noble and learned friend Lord Falconer and the noble Lord, Lord Lamont, have rather compellingly pointed out to the Committee, there are real and practical problems with the existing rules. Does the noble Lord consider it to be the responsibility of the Government to iron out these difficulties and to put into place a more satisfactory set of arrangements, or is he saying that it is for the Electoral Commission to modify the rules as it thinks best? If the latter, is he satisfied that the Electoral Commission has the freedom and scope actually to do that?

17:00

[Lord McNally]

The answer has to be yes, as if we did not have that confidence in the Electoral Commission we would be in a very odd place. As I said, we support the trusting of the commission, which will publish guidelines on how these rules will operate. It is for the designated organisations and the other parties campaigning to work within those rules.

[Lord Howarth of Newport]

No one is suggesting that the Electoral Commission is not to be trusted. The question is whether the commission has the scope under existing legislation to make the changes that may be necessary.

[Lord McNally]

Part of the debate is how much the changes need to be made. We believe that they do not and that the existing rules and regulations will stand. We see no reason to change the current legislation on spending limits for this referendum. Quite apart from seeing no compelling reason of principle, we should consider the practical effects. We are not far away from the start of the referendum period and changing the rules at this late stage could penalise permitted participants unfairly. In particular, we do not agree that there should be different spending regulations for this referendum compared with others, as the amendment suggests. We do not agree that there should be this distinction and we believe that the current spending regulation framework should apply to this referendum.

[Lord Foulkes of Cumnock]

My Lords, I had not intended to speak on this because I spoke rather a lot the other day, which resulted in the noble Lord, Lord McNally, wishing for snow in Scotland. I do not want him to create undue problems for the new Transport Minister up there but we have just heard, for the umpteenth time, that this has to be got through because if we do not pass it that will create problems for a referendum on 5 May. However, the reason that the problems are created is that the Government have decided on a timetable which is far too short so, again and again, proper scrutiny of this Bill is being denied us as it was denied the House of Commons. The Minister is now trying to deny us because an artificial date has been set for the referendum.

All sorts of anomalies can arise. We have had a number suggested—if I had had more time, I would have written down some that have come up during our past few days’ debates—and each time we raise them, there is a general frisson around the Committee that there is a problem there. Then the Minister puts his head down, reads out a brief and gets on to the next business without really considering the problem.

Perhaps I might give an example, which is not relevant to this issue but is a parallel issue that can be used. In the Scottish Parliament elections, the SNP suddenly realised that if it put itself down on the list as “Scottish National Party”, it would come low down the list. Everyone who has been involved in elections knows that if you are top of the list, you get an advantage from that; if your name is Arbuthnot, you get that built-in advantage. The SNP changed the designated name of its party to “Alex Salmond for First Minister”. It put down the name of the candidate, then “Alex Salmond for First Minister” in brackets, and that came above Labour, Liberal and Conservative. It came right at the top and it got a lot of votes as a result.

Things have been changed now, because we realised that it was a mistake. That is how these anomalies arise. That is why it is very important that this kind of legislation is scrutinised carefully by us here. I have been involved in, I think, seven municipal elections as a candidate, and seven parliamentary elections as a candidate, most of them successful, and many people here have been involved in many more; my noble friend Lady Liddell has been organising them—she has been in charge of them—and many of my noble friends have been involved in them. That is why we should be scrutinising this and thinking of the practical difficulties that arise.

The Deputy Prime Minister is determined to push this through—because of his ego, says one of my noble friends, although I would hesitate to say that kind of thing. He is anxious to get it through and we are being forced into an artificial timetable. My noble friend Lord Rooker has managed to join us now. He provided the lifeboat for the Government. At some point, I hope that the noble Lord, Lord McNally, will undertake the kind of consultation in relation to the date of the referendum as he is going to undertake in relation to the previous amendment, as requested by my noble friend Lord Campbell-Savours. If the noble Lord, Lord McNally, came to this House within a week or two and said that the Government had accepted the import of my noble friend Lord Rooker’s amendment, and that they were now going to have the referendum on, let us say, 31 October next year or whatever date, then I predict that the life of the noble Lord, Lord McNally, would be a great deal easier—and, even more important than a quiet life for him, our consideration of the detail of this Bill would be far better, and we would end up with a much better Bill at the end of it.

[Lord Campbell-Savours]

I will ask a very simple question, to which I am sure there is a very simple answer. It is about limits on individuals. My noble friend referred to an industrialist in Scotland during the course of the campaign to which she was referring. What happens if a rich man or woman in the United Kingdom decides that they have got several million pounds to spend, and they do not want to spend it through a political party in influencing the outcome of this referendum, and they decide to split up their allocations whereby they fall within statutory limits? It may well be enshrined in legislation somewhere but I just think it should be on the record, during this debate, whether that is a permissible activity under either this law or the 2000 Act. That is my very simple question: what controls exist to ensure that private individuals do not seek to manipulate the result?

[Lord McAvoy]

My Lords, briefly, the very point that my noble friend Lord Campbell-Savours has mentioned is the one that has particularly worried me: the rich men and women who have made plenty of money—worked hard and earned the money—and decide to influence the political process with an influx of money into either individual constituencies, as sometimes seems to happen, or on a national campaign. I do not think that is right. I am seriously interested in the response of the noble Lord, Lord McNally, to that, because I am certainly interested in taking up his offer of widening and deepening the bonding that has taken place between the two of us.

I am also inspired to speak very briefly following the noble Lord, Lord Lamont, who mentioned that he really cannot remember what he said a few years ago. None of us can remember everything we said a few years ago, but sometimes there is relevance in what we say. The referendum is being driven by politics. The date is being driven by politics. We are told that we should not revise and scrutinise because 5 May is set in stone and that we should not do anything to put that in jeopardy. It is our job to revise and to scrutinise legislation and we should not be accused of spreading things out. This issue is political. I shall briefly give a quote:

“I think referendums are awful. The late and great Julian Critchley used to say that, not very surprisingly, they were the favourite form of plebiscitary democracy of Mussolini and Hitler. They undermine Westminster”.

That is the bit that interests me.

“What they ensure, as we saw in the last election, is if you have a referendum on an issue, politicians during an election campaign say ‘Oh, we're not going to talk about that, we don't need to talk about that, that's all for the referendum’”.

This refers specifically to the euro campaign. The quote continues:

“So during the last election campaign the euro was hardly debated. I think referendums are fundamentally anti-democratic in our system and I wouldn't have anything to do with them. On the whole, Governments only concede them when Governments are weak”.

That was Chris Patten, now the noble Lord, Lord Patten of Barnes.

[Lord Lipsey]

My Lords, this is proving to be a most illuminating debate. When the Minister replies, can he illuminate us further? I got rather confused between two arguments that he is putting, both of which are perfectly sustainable but which are simply impossible to run together.

One argument is that there is nothing wrong with the present law; it deals with absolutely everything. I do not think that that argument stands up because it has been destroyed by the arguments of my noble and learned friend Lord Falconer and my noble friend Lord Campbell-Savours, but it is a perfectly sustainable argument by its own logic. Another argument which the Minister came to later, however, says, “Well, the law may or may not be right, but it would be totally confusing to participants if we changed it now”. That is a sustainable argument that leads to a clear conclusion: if it is going to confuse participants, we need to put the referendum date back, as my noble friend Lord Foulkes said, sort that bit of law out and then go ahead with the referendum.

The Minister can take either line as far as I am concerned, and the House will take its view on whether it supports it, but he really cannot run both lines simultaneously. I know that the late Jimmy Thomas said that if you cannot ride two horses at once you should not be in the circus, but it gets a trifle tricky if they are galloping in opposite directions.

[Lord McNally]

I know a little Labour Party history. It was Jimmy Maxton, not Jimmy Thomas, who said that. The noble Lord can have a large bet on that; I know that he is a betting man.

[Lord Maxton]

The second part was also credited to Jimmy Maxton at the time.

[Lord McNally]

However, I am not trying to ride two horses at once. We are saying that we are confident that the present regulations are robust enough for conducting this referendum. I have paid tribute before: the PPERA 2000 regulates these campaigns and parties; individuals and other organisations are controlled by that regulation. Donations above £7,500 have to be declared to the Electoral Commission and made public as another guarantee of transparency.

The Electoral Commission itself has welcomed this clause, and says that the provisions will provide transparency about the use of loans and similar arrangements on commercial or other terms to fund campaigning. Registered campaigners will be required to report certain information about such transactions in their referendum expenses return, along with the information on donations that the PPERA already requires them to report.

We have already referred, several times in this debate, to how referendums have influenced the development of law. There is no doubt that this referendum will provide an important test of the PPERA framework. The Government have said, in their response to the Lords Constitution Committee report on referendums, that we will review the effectiveness of the PPERA generally after the referendum. In addition, the Government note that the Committee on Standards in Public Life has said that it will examine whether any changes are necessary in the rules relating to the funding of referendums, as part of the wider review into party-political finance.

Basically, we are tightening up the rules on finance in Clause 6. The amendments are not necessary. The Bill contains the necessary schedules to run this referendum fairly. We have confidence in the Electoral Commission and its powers to run it fairly. We hope that the House will not—

17:15

[Lord Campbell-Savours]

Will the Minister reply to a specific question so that we have on the record exactly what will stop the abuse that I have referred to? It might come about that an individual with a large amount of money, surpassing any limits enshrined in legislation, wishes to influence the campaign. What is to stop an individual doing precisely that?

[Lord McNally]

For a start, each of those donations would have to be declared. There you have the conflict between my noble friend Lord Lamont’s philosophy and what I suspect is that of the noble Lord, Lord Campbell-Savours, and myself. I do not want to see big money distorting elections or referendums. We have a set of rules and regulations and a degree of transparency that we believe gives sufficient protection.

[Lord Campbell-Savours]

Transparency does not deal with the problem that I am referring to. If I can exaggerate to make my point—and I will—suppose that someone said, “I’ve got £20 million. I want to spend it on this referendum, and I’m going to slot it through, by way of various systems, into the campaign”. Transparency might well reveal that, but that does not deal with the problem. What is going to stop it?

[Lord McNally]

I strongly suspect at the moment—I shall come back and correct this if I am wrong—that nothing would stop it, any more than it would be stopped at a general election.

[Lord Campbell-Savours]

In other words, the Minister is conceding that money can influence this referendum campaign. He is saying not that it will but that it could in certain circumstances.

[Lord McNally]

Reductio ad absurdum, of course, wins many arguments, but many of the problems that have been raised from those Benches are not realistic. We can test the House on this. We have confidence in the rules and regulations, many of them laid down by the previous Administration. We are as interested as anyone else in ensuring that the referendum is conducted in a fair and transparent way, and we have confidence in both the legislation and the Electoral Commission.

[Lord Campbell-Savours]

But is it not astonishing that the Liberal Democrats are sitting in their places and not intervening? One would have thought that they had a particular interest during this campaign to ensure that big money could not influence the result in the way that I suggest? Why do they not get up and say something?

[Lord McNally]

Because I think that they suspect bogus arguments when they see them.

[Noble Lords]

Oh!

[Lord McNally]

All right, we can spend a lot of time on this. I am not going anywhere. If the noble Lord wants to get up again then he can, but the argument about £20 million being spent on the campaign could have been used in any election in the past 100 years. It is not going to happen in this referendum.

[Lord Howarth of Newport]

We are not talking about an extreme and highly unlikely possibility; we are talking about the possibility that someone with perhaps £2 million to spend could parcel it out between different beneficiaries who would all then campaign on one side of the referendum argument.

The Minister just said two things that are in conflict. He said that he had confidence in the rules and regulations as they are now but, when he was asked by my noble friend Lord Campbell-Savours what there was to stop this kind of abuse, he said that he frankly suspected that there was nothing. Those two remarks are in conflict with each other. This is a very important issue. We need to know the answer to the question, and if that answer is not satisfactory then the legislation needs to be amended to ensure that such abuse cannot take place.

[Lord Glentoran]

I just wonder if the biggest lump of money that has interfered with elections over many years has been that of the large trade unions. They come together as a bulk with a huge amount of money, bigger than that of any individual.

[Baroness Liddell of Coatdyke]

Could the noble Lord address something very specific that I suspect will happen? If a wealthy person domiciled in Monaco buys up all the billboards in Scotland for example as part of his or her campaign for or against the question in the referendum, what means are there of accounting for it one way or another? Is there a transparent way that it can be accounted for as the noble Lords, Lord Howarth and Lord Campbell-Savours, have asked? It is not a mischievous question—it is an issue that could arise.

[Lord McNally]

Such expenditure would have to be reported to the Electoral Commission, and it would then be published. Actually, I will not bother with this advice. I have every confidence in my advisers but this would provoke another 10 interventions.

[Lord Maxton]

In relation to that very correct question, the Minister says that it is down to accountability and that they would have to make it public. The problem, however, is that the accountability and the public announcement come after the referendum, not before and not during. So what if the individual has spent the money? It will not matter.

[Lord McNally]

Those expenditures are reported on a regular basis. If there was an attempt at such an intervention, it would probably play quite a negative part.

[Lord Rennard]

Does the Minister agree that the referendums for setting up the Scottish Parliament and the Welsh Assembly were conducted within five months of the general election in 1997 and that no such problems occurred during the course of those campaigns? Furthermore, since the Political Parties, Election and Referendums Act 2000 has been in place, we conducted the referendum for the north-east regional assembly, again without any of these problems occurring. Noble Lords in the party opposite introduced these rules in 2000. They have survived to 2010 without there being any attempt to change them. The evidence of the north-east regional assembly referendum campaign is that no such problems arose.

[Baroness Liddell of Coatdyke]

Will the noble Lord also take into account the fact that a general election was not held on the same day?

[Lord McNally]

I have taken all those points in. Fortunately—and to my great pride—I do not remember some of the minutiae of the various campaigns in the same detail as my noble friend Lord Rennard. The Opposition can raise all kinds of hobgoblins and things that keep them awake at night but the truth is, as my noble friend has just reminded us, that the PPERA has worked well. The provisions in this Bill are tried and tested. I do not object to this legislation having thorough examination. As I have said, we are willing to spend as long as the Opposition want on this matter. In fact, we might have a few late nights to see if we can focus our minds on it. For the moment we are confident that we have the legislation in place. I ask the noble Lord to withdraw his amendment and for Clause 6 to stand part of the Bill.

[Lord Snape]

Whether the noble Lord, Lord Lamont, is tempted to do so or not, I come to the assistance of the noble Lord, Lord McNally, on this matter. All three major parties have had difficulties over the years with donations. I am not talking about the trade unions, on which there was a rather irrelevant intervention. I do not know where the noble Lord who mentioned them has been for the past 30 years. Various pieces of legislation—still in force—were passed by Conservative Governments to stop trade unions passing any money on to any political party without the permission of the party membership, which is not something that applies anywhere else.

To return to the amendment, all the parties have had these problems, including the Liberal party. After all, their biggest donor at the last election subsequently went to prison. I do not make that point in any political sense; I know the Liberal party had no idea that the donation came from someone who turned out to be fraudster. The noble and learned Lord, Lord Mackay of Clashfern, said that legislation already exists to take care of political donations and it will do so as far as the referendum is concerned. However, I have just illustrated the weakness of that legislation. The reason for legislation being toughened up over the years is that it is apparent that people evade it. If I might speak for the noble Lord, Lord Lamont, his point—and one made in interventions by my noble friends—is that the present legislation is palpably inadequate and we should all concede that. If we are to have this referendum, particularly on the same day as other elections, that legislation ought at least to be looked at. I hope that is helpful to the noble Lord, Lord McNally. I am not sure what is on that piece of paper, which he looked at carefully, other than perhaps, “Maybe we don’t agree with you either and you’re on your own”.

[Lord Lamont of Lerwick]

I apologise for intervening before my noble friend speaks; I do not want to encourage anything that would prolong this debate. However, he says that the laws governing referendums have worked very well and have been in existence for 10 years. Yes, they have been in existence for 10 years but, as the noble Lord, Lord Rennard, pointed out, there has been only one referendum—a very local referendum about whether there should be a north-east assembly. I do not know what the expenditure on that referendum was but I dare say that an upper cap of £5 million was not a great problem. When the Minister says that it is tried and tested, it absolutely is not. It was tried in the north-east and that is all.

There is the problem, which the noble and learned Lord, Lord Falconer, reminded me that I raised a decade ago and which I have alighted on again, of groups splitting up. How do you ensure that a so-called independent group is not related to the designated group? This is a real problem. As the Minister pointed out, my worry is not about rich people intervening. I always remember that it was the millionaire Engels who subsidised Karl Marx. I am surprised that the other side of the House is not more in favour of rich people. My fear is just that these limits will be completely meaningless because so many organisations will claim that they are independent. I do not wish to name the different organisations that favour changing the voting system but there are a lot of them.

I asked the Minister how you distinguish between the money that those organisations spend day by day now, before the campaign begins, and the money that they will spend during the campaign. What will be defined as a campaign contribution? The Minister can say that we have legislation to cover this but it has not been tried on any significant scale. If he cannot give some guidance today, perhaps he could answer these questions on another day of the Committee or at a different stage of the Bill. They are genuinely of concern, or they certainly are to me.

[Lord McNally]

I am sure they are of concern. How we govern referendums and finance political parties will rightly be of continuing interest to this Parliament, the political parties and the political process. We are confident that this legislation and the powers of the Electoral Commission are strong enough to ensure that this referendum is carried out fairly and transparently. Many of the concerns that have been raised will be tested. I have already said that, as with other referendums, we will learn from experience.

17:29

[Lord Grocott]

I am sorry, but the Minister is proposing a referendum which will change the constitution. That is what the referendum is about and, as his leader reminded us, it is the most important constitutional change since 1832. I hope that the noble Lord does not think that the questions being asked—it is the first that I have asked—are trivial or “hobgoblins”, or some other phrase. He has constantly repeated the mantra: “Fair votes in fair constituencies”. I do not like tripping down that road by using that language, but I might as well. How about ensuring that it is a fair referendum? That is what these questions are all about, and it would be simply too late to consider them “after we have changed the constitution”. That may be the result of the referendum, although I fervently hope not, and it would be too late to say, “Sorry we got the expenditure rules wrong; we will put them right next time”. If the noble Lord cannot see that the issue needs to be addressed now, before the referendum, I suspect that not just those of us on both sides who have been asking questions, but a lot of noble Lords who have not felt it necessary to contribute to this debate may feel that a straightforward answer is required.

[Lord McNally]

The straightforward answer is that the question will be never ending. We will always be looking at how these things are regulated. We will always be looking at whether the rules can be tightened, improved or made more transparent. The question is whether you can conduct a referendum on a fair and transparent basis under the terms of the legislation proposed in the Bill. It is the opinion of this House and it was certainly the opinion of the other place that we could do that. The questions raised on the opposite side may be reasonable, including the question on the funding of political parties, which again will be an ongoing matter. That is why the Committee on Standards in Public Life is looking at that very issue, and this party and this coalition Government will legislate on the funding of political parties.

[Lord Howarth of Newport]

Of course the Minister is right to say that there will be continuing debate on this range of issues. However, on the specific issue of potential abuse to which the noble Lord, Lord Lamont, alerted us, and which my noble friend Lord Campbell-Savours and others agree should be taken seriously, the Minister said just now that in his view nothing in existing legislation would safeguard against that abuse. That is very worrying, and it will not do for the noble Lord to seek blandly to assure us that the legislation is probably good enough and that we should proceed with it. The Government have had plenty of time to think about these issues. This Bill was introduced months ago, and it is the responsibility of the Government to ensure that the rules governing the conduct of referendums are sufficiently rigorous to provide against such abuse occurring.

[Lord McNally]

But if the Opposition, or even my noble friend, are putting forward hypothetical threats to the fair conduct of the referendum, I am not sure that any piece of legislation on God’s earth can meet every imagined threat.

[Lord Howarth of Newport]

Not every threat; but this is a specific abuse that was forensically identified by the noble Lord, Lord Lamont.

[Lord McNally]

It was not forensically identified. It was suggested that there are ill-defined millionaires wandering around with ill-defined amounts of money. We believe that this legislation is robust and transparent enough to deal with those matters. If it helps, I will at some later stage—and I have already demonstrated that I have absolute faith in my advisers—take the—

[Lord Snape]

What did the advice say?

[Lord McNally]

It says, “Be rude to Snape, it always wins the House over”.

[Lord Snape]

Then I can only congratulate the noble Lord on the quality of his advice.

[Lord McNally]

And this one says, “Have a go at Rooker, while you are at it”. I will take away this issue of the roving multi-millionaire splitting up his money. If I was related to him, I would want him sectioned before he spent the family fortune. In the mean time, I again ask the noble and learned Lord to withdraw his amendment, and I ask the House to adopt Clause 6 in due course.

[Lord Falconer of Thoroton]

My Lords, it is important to identify what we are trying to achieve here. I think everybody in this House would agree that the right expenditure limits are those which create a level playing field. Both sides should be subject to the same limits. The difficulty about the rules that apply from PPERA is that that does not appear to be the case on the facts of this particular referendum. Perhaps I may identify two specific circumstances as to why that is. The way that PPERA deals with the limits is by setting three separate limits, which are cumulative. The first limit allows the designated lead organisation on each side—the leading campaign organisation for “yes” and the leading campaign organisation for “no”—to have a limit of £5 million. That plainly demonstrates equality there. The second limit allows each political party that got between 20 per cent and 30 per cent of the vote in the previous election to have a cumulative limit of £5 million. That is added to the £5 million for the designated lead organisation. In the current arrangements, we have two political parties that express no view on whether they support the change to AV and one political party that supports the change to AV. The effect on the facts of this case is that there is the designated lead organisation limit of £5 million, and in addition there is £5 million that the Liberal Democrats get to spend on the campaign. Therefore, there appears to be an uneven playing field right from the start.

Separately and in addition to that point is the point made by practically everybody around the Chamber that, if you are an authorised participant—either an individual or a corporation—you can donate up to £500,000. Therefore, there is very little difficulty for somebody who supports one of the campaigns—whether they are companies, individuals with families, or a group of people who have a particularly concerted view—to give, in effect, an unlimited amount of money to one or other of the campaigns.

Our proposition is that, first, you should reduce the amount of the limit for political parties, because otherwise you reach an unfair result. That is precisely the point that the noble Lord, Lord Lamont, made in 2000. It is obviously correct in relation to this because it obviously leads to a limit of £10 million for the “yes” campaign and a limit of only £5 million for the “no” campaign.

Regarding the rich individual, no answer of any sort was given by the noble Lord. I would have been prepared to accept some answer in relation to, first, the party-political point and, secondly, the point about rich individuals. However, not one answer came. The noble Lord merely said, “We are confident that the rules are okay”. This is the same Minister who, in the debate on the previous group of amendments, agreed to go away and think about changing the rules, which he said were not adequate to deal with the position. He is shaking his head. He is right: he did not agree to that but he agreed that he would discuss it, which rather implied that he accepted that there might be something wrong.

Perhaps I may quote what the Electoral Commission says about the two amendments that we are putting forward:

“These are significant changes to the provisions for spending limits at UK-wide referendums set out in the Parliamentary Parties, Elections and Referendums Act. Parliament may wish to consider whether the change might affect the ability of campaigners to put their arguments effectively to voters and the potential implications of changing one aspect of the PPERA rules on campaign spending without further consideration of the overall regulatory structure”.

Therefore, the commission is saying, “Don’t change anything because that might lead to the whole thing falling apart in some way”.

The noble Lord, Lord McNally, says, “If we have made a mistake in relation to these rules, we’ll learn from this”. I think that when we are scrutinising this Bill, our obligation as a House is to consider the merits of the changes that have been proposed. We should not treat the referendum—on a matter which Mr Nicholas Clegg has described as the most important electoral change since 1832—as an experiment but we should have the courage of our convictions and change the system if we think it is wrong. Surely the one thing that we have learnt from America is that money does buy elections, and all the rules that we introduced were intended to stop that happening. However, these rules do not contain fair limits that apply to both sides.

The noble Lord was so good on the first group of amendments and so bad on this one—in that he gave absolutely no explanation and did not really deal at all with the arguments—that I have no option but to test the opinion of the Committee.

17:41

Division 1

Ayes: 169

---

Labour: 139
Crossbench: 20
Ulster Unionist Party: 2
Independent: 2

Noes: 194

---

Conservative: 115
Liberal Democrat: 58
Crossbench: 16
Independent: 1

17:54

Amendment 39B

Moved by

[Lord McNally]

39B: Clause 6, page 5, line 3, at end insert—
“( ) Schedule 19C to the 2000 Act (civil sanctions), and any order under Part 5 of that Schedule, have effect as if offences under paragraph 8(1) to (12) of the Schedule set out in Schedule 9 to this Act were offences prescribed in an order under that Part.”

[Lord McNally]

My Lords, it is reassuring that the power of argument and eloquence still triumphs in this House.

Clause 6 and Schedule 9 to the Bill ensure that all permitted participants in the referendum that are not political parties are covered by the same regulations regarding loans as already apply to political parties that campaign in the referendum. The Bill does this by creating a new regime for the regulation of loans to permitted participants which closely reflects the rules that already govern loans made to political parties in Part 4A of the Political Parties, Elections and Referendums Act 2000. Part of this regime is the creation of 13 new offences applicable to those permitted participants in the referendum. Again, these offences replicate the offences that already apply to major political parties through Part 4A of the 2000 Act.

This amendment seeks to apply the Electoral Commission’s new civil sanctions powers—they came into force by order on 1 December—so that they are available in relation to 12 of the 13 new offences created by the Bill. The civil sanctions regime was inserted into PPERA 2000 by the Political Parties and Elections Act 2009. It is intended to allow the Electoral Commission to apply sanctions that are appropriate to the nature of each contravention and to use new approaches to secure compliance with the law where appropriate rather than referring a case for criminal investigation. The civil sanctions include fixed monetary penalties, discretionary requirements, stop notices and enforcement undertakings.

It was not possible to prescribe the new loans offences that the Bill creates in the order so as to apply the civil sanctions regime to them on 1 December. That is because the new loans offences have not yet been approved by Parliament and will not be approved until this Bill obtains Royal Assent. However, the order that came into force on 1 December prescribes the existing offences regarding loans to political parties. This means that there would be a disparity between how political parties and other permitted participants who receive loans to fund their referendum campaigns could be sanctioned if we were not to apply the civil sanctions provisions to the new offences by making this amendment. Our amendment will ensure that civil sanctions powers are also available for the new loans offences and will close off this disparity. The result is that any permitted participant who commits a loans offence after Royal Assent could be subject to civil sanctions imposed by the Electoral Commission. I beg to move.

[Lord Howarth of Newport]

My Lords, I detect some inconsistency in the Minister. He is using this legislation to introduce new rules concerning loans but he has spent a considerable amount of time this afternoon telling the House that it is not appropriate to use this legislation to change rules in respect of other matters that may arise in the conduct of referenda—for example, expenditure on publicity or the rules governing the donations that authorised individuals may give. Why is it okay for the Government to change the rules here where it happens to suit them and not in those other respects?

[Lord Soley]

May I ask for clarity? I found the Minister’s comments confusing. He seemed to be saying that, because the rules were not ready, we could not change this, but he was setting aside time or something—I did not understand that bit—so that we could change it at a later date. I think that he needs to explain that a bit better.

[Lord McNally]

These rules will come into force once the Bill becomes an Act. This amendment merely brings the legislation into line with the new civil sanctions that the Electoral Commission is bringing in for political party operations—civil sanctions that I greatly welcome, because they give the Electoral Commission a degree of flexibility in getting discipline into elections rather than the constant threat of criminal sanctions.

[Lord Soley]

I understood the Minister to say—maybe I got this wrong—that the civil sanctions were not ready because they had not gone through the other House in time. Is that what he is saying?

[Lord McNally]

The civil sanctions in relation to the referendum will not apply until this Act is passed. The civil sanctions that are being brought in apply to elections and the conduct of parties in elections. The amendment merely brings the Bill into line with what was done on 1 December, but the civil sanctions in relation to the referendum will not be in force until this Act is on the statute book.

18:00

[Lord Gilbert]

The noble Lord, Lord McNally, is probably too young to remember the referendum of 1975, which was shamelessly rigged by the Government of the day—a Government of whom I was a member. The no voters were allowed to have a leaflet published and distributed at public expense, as were the yes voters. But the Government then brought out a third leaflet, which said yes; it was rather bigger, as I recall, than either of the other two leaflets. The referendum was therefore totally rigged. The rigging was done not by rich millionaires, as the noble Lord, Lord Lamont, seems to fear, but by the Government of the day. Can we have an assurance that there will be no repetition of that behaviour?

[Lord McNally]

I am sad to say that not only am I old enough to remember that referendum but I was adviser to the Foreign Secretary of the day. My memory of that referendum, which gives me real confidence about this one, is that the Labour Government had an agreement to differ, which allowed the various parts of the Labour Party to campaign vigorously on either side of the debate yet come together again after the decision of the people. That is why I have every confidence that the same will happen again next May. I have no doubt that individuals in the coalition will take different views. I think that my noble friend Lord Strathclyde has said that he hopes to campaign up in Scotland with the noble Lord, Lord Foulkes, which is a frightening thought for anybody.

[Lord Maxton]

Like my noble friend Lord McAvoy, I was part of the no campaign in the 1975 referendum. I remember that the government leaflet was not as balanced as everybody thought; in fact, it was very much in favour of the yes vote. Will the Minister answer the question that my noble friend Lord Gilbert put? Do the Government intend to produce a leaflet in favour?

[Lord McNally]

No, the Government do not intend to produce a leaflet. No, the Government do not intend to rig the referendum.

[Lord Lamont of Lerwick]

Does the Electoral Commission intend to produce a leaflet or anything on the internet?

[Lord McNally]

I think that the Electoral Commission will publish some guidance on the conduct of the referendum, but it certainly will not make any judgment on the question to be put before the people. The one thing that I do remember about the 1975 referendum is that it gave a resounding 2:1 yes vote.

[Lord Rooker]

According to the Bill, the Electoral Commission is going to produce a leaflet explaining the AV system; it will go through every front door in the country. We would like to see a draft of that leaflet, because that is where the value judgments come in. How will it explain this rigged, dishonest AV system, which is so open to abuse? As I have said, I will be forced to vote for first past the post if that is the alternative.

[Lord Lamont of Lerwick]

I referred earlier to New Zealand, where an official leaflet explaining the system was provided. Afterwards, there was a great argument about whether it had been impartial.

[Lord Deben]

If there is to be a leaflet from the Electoral Commission—I find that idea difficult, because the Electoral Commission will have an attitude that comes through—will it give a full and detailed explanation of why AV has not always worked and will there be an explanation of why the first past the post system is on occasion thought to be better? That is the only way in which there can be an unbiased leaflet. If it merely explains AV, it will lead people to believe that the system is sensible, when it manifestly is not, because the leaflet will have the Electoral Commission’s name on it and will therefore be taken more seriously than it would be if it did not. It seems wholly unacceptable that the Electoral Commission should interfere in something that is none of its own business.

[Lord McNally]

I think that the opponents of the yes vote are already getting their excuses in. The leaflet will help people to make a decision and factually explain both systems. I am not sure that the outcome of the 1975 referendum owed itself to a government leaflet in the way that the noble Lord, Lord Gilbert, suggested.

[Lord Lamont of Lerwick]

But does the Minister remember that the leaflet that was published had a map of the United Kingdom on the front that left Orkney and Shetland off, which were the only areas to vote against continuing our membership of the EEC?

[Lord Rennard]

My Lords, could I invite the Minister and other noble Lords to confine their arguments more to Amendment 39B, which deals with civil sanctions, and perhaps make other arguments when we are dealing with other relevant parts of the Bill?

[Lord McNally]

I am only glad that my noble and learned friend Lord Wallace was not here to hear of that dreadful omission from the 1975 leaflet.

[Lord Campbell-Savours]

Perhaps I may help the Minister. I attended a meeting of the Electoral Commission in the House about two months ago. The commission was so scrupulous about not wishing to indicate any view that it found it difficult to answer questions, which Members listening to its explanation of what was going to happen found hardly credible—indeed, they started laughing. It is trying to be independent, but it would be very helpful if we could see some of the leaflets that it is planning to put out.

[Lord McNally]

I will not promise that this Committee on the Bill will become a drafting committee for a leaflet, but I share the noble Lord’s view of the Electoral Commission. It is nobody’s poodle; it will take its responsibilities very seriously. If it says that it is going to produce a factual leaflet, I believe it.

[Lord Soley]

I declare an interest as one of the parliamentarians who offer advice to the Electoral Commission when it asks for it. It recognises the problems involved in making a bald statement. It seems to me that it faces the alternative of making a very bald statement that the alternative vote is this and the first past the post system is the other, so that both sides are covered in a very limited way, or of getting into descriptions. That is where you hit the rocks, because as soon as you start describing systems you inevitably talk about advantages and disadvantages, even if it is by implication.

There is a real problem both for the Electoral Commission and ultimately for this House. How far does the commission offer advice on what should be done by a Government or by this House as opposed to simply stating what the current position is or what it would be if a certain amendment or change was made? There is a case for saying either that Parliament rather than the Electoral Commission should decide all the details or that the leaflet must be agreed by the various parties in advance. It is quite a minefield. There are other people in this Chamber who have been at meetings with the Electoral Commission. I do not doubt that it is trying to do its best, but there is a genuine difficulty as to what powers it leaves to Parliament to define and describe and how much authority it takes in trying to describe without falling into the trap of being biased, however unintentionally.

[Lord Lamont of Lerwick]

I support what the noble Lord has said. A leaflet describing the pros and cons of different electoral systems cannot be factual, as there are values and opinions. The assertion that one voting system means that people will have more than 50 per cent of the electorate’s support is open to argument. Of course you can go into a certain amount of detail about whether a fourth preference is as valuable as a first preference, but the argument is even more complicated than that. Surely the Government ought to consider the possibility that there should be no leaflet of any kind from the Electoral Commission. The Electoral Commission has chosen two designated organisations, both of which will receive public funds. Why not leave it at that? Why do you have to have somebody listing the pros and cons in a way that will inevitably be attacked from both sides?

[Lord Tyler]

My Lords, I am tempted to ask, as the Irishman did, “Is this a private fight or can anyone join in?”. I cannot at the moment see where Schedule 19C to the 2000 Act, on civil sanctions, gets anywhere near the issue of the leaflet. If we can all discuss anything anywhere in the Bill, I have several suggestions about what we might discuss. We can come back to this later. I think that it is an important issue but it is not covered by this group of amendments. Please can we have some time later to discuss the issue? I sympathise with the point that the noble Lord, Lord Soley, is making, but it ain’t here.

[Lord Soley]

I agree with that, too. The problem is that the Minister raised it.

[Lord McNally]

I did not.

[Lord Soley]

If it was not the Minister, it was someone else and he responded to it. It was the Minister who started talking about the leaflet.

[Lord McNally]

We can discuss this under Schedule 1 to the Bill.

[Lord Soley]

I would be happy with that. Let me be clear. I was responding to the exchange that took place in which the Minister talked about a leaflet.

[Lord McNally]

As we drift down this stream, we do, I confess, go into inlets and rivulets.

[Lord Falconer of Thoroton]

This provision introduces civil sanctions in relation to criminal offences set out in Schedule 9. As I understand it, the criminal offences, of which there are 12 in paragraph 8, are designed to ensure that either permitted participants or authorised—

Sorry, there is not much point me asking a question if you are chattering away.

[Baroness Northover]

I have got two ears.

[Lord Falconer of Thoroton]

She has got two ears. I agree with that. I will go on. I am sure that the fact that she has two ears has some significance to the story.

There are 12 offences identified in paragraph 8. The purpose of the offences, as I understand it—though I stand to be corrected by the Minister—is that the only people who should be spending money in relation to the referendum are either permitted participants or authorised participants. Therefore the purpose of the criminal offences is to prevent expenditure by anyone other than those people. The way that this is dealt with, as a matter of the criminal law, is to say that if there is a transaction where in effect somebody else’s money is spent, either directly or through a permitted participant or an authorised participant, it is made a criminal offence by paragraph 8 of Schedule 9.

The essence of each of the criminal offences, as I read them—again, I stand to be corrected—is that you have to know if you are committing a criminal offence that either as an authorised or a permitted participant you are using somebody else’s money or as an individual providing the money you know that you should not be spending it on the referendum. Know or ought to know, I should say. What I am interested to know, and that seems a perfectly sensible structure, is what the circumstances are in which it will be decided to bring criminal proceedings and what the circumstances are in which it will be decided to employ a civil sanction. Obviously it will depend on the facts in every case but if know or ought to know is part of it, what distinctions will people rely on in order to determine whether it is civil or criminal? This will be important, because paragraph 8 is obviously intended to be a deterrent to people from breaking the law in relation to the limits that apply—

18:15

[Lord Lamont of Lerwick]

Does the noble and learned Lord agree that the fact that we are debating sanctions in a sense validates the questions that were asked about how the rules were applied, because the sanctions and the fines follow those who break the rules? All the questions about what constitutes one organisation and what constitutes a separate organisation are deeply relevant to the points that he is discussing.

[Lord Falconer of Thoroton]

I completely agree. I find the idea that we should not be talking at some length about authorised participants and permitted participants entirely wrong. That is why the Minister’s response to the last series was so disappointing. The last series went right to the heart of the issues that relate to the funding of the referendum, because everybody around the House wants a situation in which the same rules are imposed on everybody. I am sorry that the noble Lord, Lord Lamont, got a slapping from the noble Lord, Lord Tyler, for raising the question of the government leaflets, although it was obviously a slapping that he was quite able to cope with. That seems to be the one area where it is authorised to spend money that does not come from an authorised participant or a permitted participant.

I do not dismiss as a joke what my noble friend Lord Gilbert said. Presumably one of the most significant sources of what will be regarded as reliable information in relation to this referendum will be what the Government themselves or the Electoral Commission—I cannot remember which—produce in relation to these leaflets. That will probably be where one of the most significant amounts of expenditure will be. However, I return to my question to the noble Lord—

[Lord Lipsey]

Before the noble and learned Lord returns to his question, as he must, did he note that when the outbreak of violence took place on the other side—I think that he called it “slapping”—the Minister calmed it by saying that we could talk about all this when we get to Schedule 1? Has he noted that Schedule 1 makes no reference whatsoever to this leaflet and is of no relevance to it?

[Lord Falconer of Thoroton]

I was not sure when the noble Lord, Lord Tyler, and the Minister envisaged that we should have this debate. If they could identify on which particular issues we should have it, that would be fine. My question—

[Lord Grocott]

I have been glancing through the Bill, because the reference to the crucial issue of the leaflet hit me by surprise. The Minister looks irritated every time I make a suggestion; that seems to be the effect that I have on him. This is what Committee stages are for. Sometimes almost out of a clear blue sky a very important issue arises. It seems that we are not going to debate this now. The only part that I can see immediately thumbing through the Bill that refers to the role of the Electoral Commission is on page 19. It says:

“The Electoral Commission must take whatever steps they think appropriate to promote public awareness about the referendum and how to vote in it”.

I cannot see anything that refers to leaflets. That is quite probably ignorance on my part, but that was the nature of the debate.

[Lord Rooker]

My noble friend should turn over the page and see sub-paragraph (2) at the top of page 20. That is permissive, whereas the paragraph that my noble friend read out is compulsory. There is a real problem in paragraph 9 of Schedule 1 about the leaflet and the information. There will be a long debate on sub-paragraphs (1) and (2) of paragraph 9 when we get to it, because what is in the Bill seems quite contradictory to me.

[Lord Falconer of Thoroton]

The offences under paragraph 8 are knowledge and ought-to-know offences. Can the noble Lord give some indication, because it will obviously be important to the people involved, of what circumstances will determine whether the sanction is civil or criminal? The offences have maximum terms. What is the maximum civil sanction that can be applied? Who will determine whether it is a civil sanction or a criminal sanction?

[Lord McNally]

First, I do not believe that the role of the Electoral Commission is as passive as the noble Lord, Lord Soley, suggests, as was demonstrated by the fact that it suggested a better question for the referendum, which was taken on board by the Government and implemented in the Bill. I supported the establishment of the Electoral Commission and welcomed the introduction of political input into its deliberations. I remember when we first discussed it, the noble Baroness, Lady Gould, and others and I pointed out that there was a necessity to have some sensitivity about how political campaigning was carried on by mainly voluntary organisations. The Electoral Commission has performed its duties well, and I have every confidence in its being able to carry out its responsibilities under the Bill.

[Lord Howarth of Newport]

I am glad to hear the Minister affirm his confidence in the Electoral Commission. Does he repudiate the very unkind remarks about the chair of the Electoral Commission made by his right honourable friend Eric Pickles a few months ago? The chair came under heavy personal criticism from his right honourable friend.

[Lord McNally]

I shall not comment one way or the other on extraneous interventions like that, for goodness’ sake.

The noble Lord, Lord Lipsey, gave me a slap about getting irritated, but the point is that these election rules and regulations—most of the schedules to the Bill—are straight lifts from existing legislation put in place by the last Labour Government, so it comes as a surprise that people who were Ministers in that Government suddenly find all kinds of loopholes and dangers in that legislation. We have transposed into the schedules existing legislation, bringing it as up to date as we can with this amendment and this clause.

I am not a lawyer but, as far as I understand it, the civil sanctions have been brought in because, as I said earlier—and this is not in my brief but from my understanding of it, so perhaps if I am wrong one of the experts behind me can correct me—the criminal sanctions in the existing legislation were felt to be far too heavy-handed, particularly as they applied to volunteer officers in political parties. A range of civil sanctions were brought in that allowed the Electoral Commission a degree of flexibility, from giving a little advice to an errant officer to applying heavy sanctions. That flexibility was intended in bringing in civil sanctions. The decision on how to apply them is one for the Electoral Commission.

As noble Lords know from briefings sent to them, the Electoral Commission is following very closely these deliberations and listening very closely to the points made by noble Lords on all sides. I have every confidence that, if a point is made that the Electoral Commission thinks is of substance and needs to be dealt with, it will not hesitate to bring this to the attention of Ministers and Members of the Opposition, just as it has done in the past. The clause is a fairly narrow one to make provisions regarding the regulation of loans and bring the regulations under the referendum up to date with the legislation already introduced on 1 December.

[Lord Soley]

I do not want to continue the discussions that we have had other than to close them down. This is all the fault of my old and noble friend Lord Gilbert, with whom I had the great pleasure to be an international observer at the first free elections in Mongolia, which was quite an experience for both of us—and an even bigger experience for the Mongolians. I should say, in case I misled the House or the Minister, that I did not intend to imply—and I do not think that I implied—that the Electoral Commission was passive, which was the word that he used. I simply tried to describe the dilemma facing organisations such as the Electoral Commission as to whether Parliament should make more detailed rules, or whether they should make them and keep things on a very simple basis. That is a very important debate, but it is one that we get to under Clause 9.

[Lord Lipsey]

In the same spirit, I think that I misrepresented Schedule 1, and therefore the Minister, because there is a proposal in there on which it would be possible to hang a discussion about a possible leaflet—namely, the public information measures. I apologise for that and ask the Minister to confirm that it would be fully in order for the House to have a proper debate about the very important issues raised about the leaflet when we get to Schedule 1.

[Lord McNally]

I give that assurance and sincerely hope that the noble Lord, Lord Strathclyde, has it on his list to deal with that schedule.

Amendment 39B agreed.

Clause 6, as amended, agreed.

Schedule 9 agreed.

Clause 7 : Interpretation

Amendment 40

Moved by

[Lord Bach]

40: Clause 7, page 5, line 27, leave out “the Lord President of the Council or”

[Lord Bach]

I can make this point fairly briefly, but it is a point of some significance and I should be grateful for the Minister’s response. The amendment looks, rather unusually, at the interpretation clause of the Bill. Clause 7(1) says that,

‘“the Minister’ means the Lord President of the Council or the Secretary of State”.

I have been lucky or unlucky enough to take a number of pieces of legislation through your Lordships' House, and to hear many others taken through it. Bills with interpretation clauses have, as a standard, defined “the Minister” as “the Secretary of State”. That seems pretty sensible and uncontroversial and has the advantage of having been used traditionally. In this case, it would be whoever is Secretary of State for Justice at the relevant time, although, as I understand it, strictly speaking it could be any Secretary of State who would be entitled to take the orders through, which is why “Minister” appears in the Bill. But to say,

“the Lord President of the Council”,

in this Bill is, it seems to us at least, to personalise the position. I shall explain why.

The role of the Lord President of the Council, whoever that may be at a particular time, is set out on the website of the Privy Council and defined as follows. It says that that person:

“Presides at Privy Council meetings, including any Emergency Privy Councils … Considers for approval a number of Statutory Orders concerning Health Care, Veterinary, and Scottish Higher Education matters … As a member of the Privy Council Committee for the Affairs of Jersey and Guernsey, reviews Laws and Orders relating to the Islands, and makes recommendations to Her Majesty concerning their approval … Deals with Ministerial correspondence and Parliamentary Questions relating to Privy Council Business, such as the appointment of High Sheriffs … Determines cases, where the Lord President acts as University Visitor, in a private capacity”.

18:30

None of these duties relates to any of the duties placed on a Minister in relation to the provisions of this Bill.

The real reason why page 5, line 27, reads as it does is to capture the current Deputy Prime Minister’s responsibility for constitutional reform. He is the Lord President of the Council as we speak. This is the current Deputy Prime Minister, whose responsibilities regarding constitutional reform are also exercised by the current Lord President of the Council, by virtue of them currently being—of course—the same person. This alignment, however, is not in the job description of the Lord President of the Council, as I have attempted to explain to the Committee.

This inclusion is wrong. Simply and plainly, it is wrong to write this responsibility into law in the interests of one individual—the person who happens at present to hold that position. That individual, of course—the Deputy Prime Minister—will not be Lord President of the Council for ever; it is doubtful whether any successor would want the responsibility of signing an order into effect. That is not part of the responsibility—normally—of the Lord President of the Council.

If the Bill had said, “‘The Minister’ means, in this case, ‘the right honourable Nick Clegg’”, we would think that a bit odd. If the Bill remains as it is, it might as well have just done that. Why not do what is done in every other Bill that certainly I have been involved with, and just say that “the Minister” means “the Secretary of State”? I beg to move.

[Lord Lipsey]

My Lords, this is not the greatest matter before us, but it is an important one and I support the amendment. If there is one rule that one learns in life, it is that making two people responsible for something is a recipe for it not getting done properly. There is not one person to blame or to take the lead and it leads to confusion and non-action. That is my first point. My second point relates to precisely the other side of the coin of the argument put by my noble friend Lord Bach; namely, the present occupants of this position. On the one hand you have the Justice Secretary, who is a passionate supporter of first past the post. On the other hand, you have the Deputy Prime Minister, the Lord President, who is a passionate supporter of AV. They have come together in this coalition and that is simply a fact.

But honestly, there is scope here for mischief-making—and I used to be a journalist. There could be real mischief: for example, the Justice Secretary waits until the Lord President of the Council has gone off for the weekend to make some amendment or order under the Bill to suit his book. More likely, there will be journalistic mischief-making, where the fact that these two gentlemen agree on the Bill when they do not agree on the subject of it is elevated and makes a good diary paragraph. I am sure this Government’s backs are extraordinarily broad. They probably do not read the newspapers at all and are not the least interested in the gossipy things that I suspect might arise from this, but it does seem a completely pointless goal to leave the matter without a goal-keeper so that anybody can have a pot-shot at it.

[Lord Howarth of Newport]

Does my noble friend agree that this is significant in terms of proper accountability to Parliament? Parliament needs to know which Minister within the Government holds responsibility, and the statute ought to make that clear.

[Lord Lipsey]

My noble friend makes clear in more formal terms what I meant by confusion. Parliament is indeed one of the bodies that could end up confused.

[Lord Newton of Braintree]

My Lords, one of my problems at the moment is that I can hardly stray into these debates without finding that somebody stirs me up. That has happened on this occasion. I was Lord President of the Council for five years, probably longer than anybody else since the war—with the possible exception of Herbert Morrison—or indeed, since the role was created.

I am strongly inclined to stick with my noble friend; he will be glad to hear that, I hope. The clue to this is what was said by the noble Lord, Lord Bach, which completely refutes what has just been said—I am somewhat surprised to say—by the noble Lord, Lord Lipsey. The phrase used in legislation—I do not know how it was done when there used to be Ministers as well as Secretaries of State—is “Secretary of State”. It is not “Secretary of State for Justice”; it is not “Secretary of State for this, that or the other”. It means that any Secretary of State, constitutionally, can exercise those powers. The point from the noble Lord, Lord Lipsey, falls in my view, because any confusion that there is is basic and written in and just goes on.

My point therefore, and declaring my former interest, is that I do not see why the Lord President of the Council, who is certainly a Cabinet Minister and with the status of a Secretary of State, should not have the same ability to do what all other Cabinet Ministers designated as Secretaries of State can do. I stick with my noble friend.

[Lord McNally]

I think I am now 2-1 up in the interventions of my noble friend Lord Newton; I am very pleased about that. It is an interesting thought. I am surprised that the other side should leap on this to assume that it was the Secretary of State for Justice. As I explained, I am here in my capacity as Deputy Leader of the House of Lords, and covering Cabinet Office business. When I studied my constitutional stuff at university, I learned that “Secretary of State” was a portmanteau term in government, not specific to any one person.

The noble Lord, Lord Lipsey, talks of scope for mischief-making. For half this Committee, we have constantly been told that this project has been driven through by Nick Clegg and Nick Clegg alone. If we go through the various Hansards, we will find that Nick Clegg has been named more often by the Opposition than any other single person. The Government have put into the Bill who has the responsibility for this legislation. It applies to something that will be carried out next May, when we will be celebrating the first of the five years of Nick Clegg being Lord President of the Council, but nevertheless it is relevant to this Bill. It is simply a matter of common sense to have him named. I agree with my noble friend, Lord Newton. In the past, there have been people who have carried the dual title of Lord President and Secretary of State because of that curious anomaly of what Secretaries of State can do. As I remember it, it used to be only the Minister of Agriculture who was not a Secretary of State. All the rest were. I am sure it is not mischief-making.

The arrangements in the Bill make sense. They allow the Deputy Prime Minister to take key decisions with nationwide effect, but also enable decisions with a specific territorial flavour to be made by the territorial Ministers. For this reason, I urge the noble Lord to withdraw his amendment.

[Lord Bach]

My Lords, I shall of course withdraw the amendment but this is an interesting point because, as far as I know, it has never been done before. If the Minister has some precedent for it, I will be proved wrong. What most upsets me about the whole debate is having stirred up the noble Lord, Lord Newton. I do not enjoy doing that at all, although he does not seem much stirred up to me.

[Lord Newton of Braintree]

Only in the nicest possible way.

[Lord Bach]

Then I feel much better for that. I still do not see why both positions are there. If the Minister is right in his argument, why are the words “Secretary of State” included at all? Why is it not just the Lord President of the Council or, if the Government want to put other Ministers in, why not say the Prime Minister, too, or the Chancellor of the Exchequer? I do not see why both names are there when the precedent is that it is the Secretary of State, but perhaps—

[Lord Campbell-Savours]

Could the answer be that there is some concern among those involved in the “pro” campaign that the Lord President of the Council might be identified with Mr Clegg, who himself will be identified with the most derogatory remarks about the electoral system that is being promoted?

[Lord Bach]

My Lords, I was trying to be as polite as I possibly could be. One of the dangers of personalising it in this way, as I think my noble friend Lord Campbell-Savours is hinting, is that Mr Clegg may be either so popular that his name, as it were, in making the orders means that what he wants will occur or, heaven forbid, so unpopular that whatever he does or suggests means that what he wants will not happen. To that extent, I agree with my noble friend.

[Lord McNally]

On the point about Secretaries of State, I think the intention is that those in mind are the Secretary of State for Scotland and the Secretary of State for Wales.

[Lord Bach]

So, for England, is it the Lord President of the Council?

[Lord McNally]

If there was to be anything specifically territorial, the Secretary of State could take responsibility there. That is my interpretation of it, but there is no great mystery about it. It is simply that, as I said at the very beginning, the Lord President is steering this Bill. He steered it very successfully through the House of Commons and we are doing the same.

[Lord Bach]

The Minister is being unfair to himself. The Lord President of the Council was hardly seen in the House of Commons while the Bill went through it. I think that he moved the Second Reading and did not appear again until Report. But we are seeing a great deal of the noble Lord, which is of course always a huge pleasure.

[Baroness Liddell of Coatdyke]

I am a bit confused about something that the Minister said about the territorial responsibilities of the Lord President. Having been a Secretary of State for Scotland, I am not absolutely clear that that is the position. It might be helpful if the Minister could seek greater clarity from his inestimable advisers.

[Lord McNally]

This is about the Lord President’s territorial responsibilities. With the ability of my friends opposite to become confused, I should never have intervened again. I am sorry, for it was a very bad mistake as the noble Lord was just about to withdraw.

[Lord Howarth of Newport]

Can I press the Minister a little bit on his statement just now that the Lord President—the Deputy Prime Minister—steered this legislation very successfully through the House of Commons? Is his concept of successful passage through that House that the Bill was programmed and that very important sections of it were not examined either in Committee or on Report? Yes, the coalition got its way in the House of Commons but the upshot of that is that there is a particular duty on this House to examine the Bill in the most minute detail, precisely to make up the deficit caused by the failure of the House of Commons to examine this legislation properly. What does the Minister mean by successfully steering the Bill through the House of Commons: that the Bill should be properly scrutinised, or simply that the Whips should ensure that it passes without being scrutinised?

18:45

[Lord McNally]

I have been around Whitehall and Westminster only for about 40 years, but during the whole of that time people from the Opposition Benches have stood up and made that speech about various bits of legislation. In fact, as noble Lords opposite will know, the time offered in the other place for scrutiny of the Bill was positively extravagant, matched only by the verbosity and time-wasting of the spokesmen for the Opposition, who used every opportunity to waste time exactly so that somebody at this end could make the complaint that the noble Lord has just made—and the noble Lord, Lord Rooker, knows that more than most.

[Lord Rooker]

When I took this Bill on holiday to read in the summer, it was 153 pages. When it arrived in this House, it was 300. Yet the Minister has the brass neck to say that the other place was time-wasting, when the Bill doubled because of 286 government amendments that were put into the Bill in the House of Commons. Come off it!

[Lord Lipsey]

Perhaps I might make a helpful suggestion to the Minister to move things on, because we are getting into other waters. He said something incredibly helpful just now: that this is intended to give part of the powers to be exercised by a Secretary of State for Scotland and a Secretary of State for Wales—by a territorial Minister; that is what the noble Lord said, as he will find when he checks in Hansard—and part of them to be exercised by the Lord President. That is perfectly sensible and a very good description. All he therefore needs to do is to agree to introduce at the next stage of the Bill an amendment that makes that clear and we can move on.

[Lord Soley]

I would not have intervened again, except for the way that the Minister addressed his last comment. That was not helpful. It is where he actually makes matters worse. My noble friend Lord Rooker is exactly right. The noble Lord talked about his vast experience but I know of many experiences of both kinds of Government increasing a Bill by piling in extra clauses that then come before this House. It does not help to try and score a party-political point. The other side of the argument is that on the last occasion we debated this—I forget which day that was—I quoted from a Conservative MP’s letter, which stated very clearly that he had only five minutes to discuss an issue of great importance and did not have time to speak at all on the main debate for it. There were members of the Minister’s Government complaining about lack of time.

My advice to the Minister is not to get into this party-political knockabout. A Bill like this, which is very important to the Government but very complex, will inevitably expand over time if it is hurried through in the way that the Government are doing. That is what has happened and that is why all those extra clauses, to which my noble friend Lord Rooker referred, have been added. It also explains why some people on the Minister’s own side who were opposed to certain aspects of it complained about the lack of time in the House of Commons. I simply say: for heaven’s sake, drop this idea that it is all one party’s fault. That is nonsense.

[Lord Howarth of Newport]

Does my noble friend agree also that the fact that the Bill has been added to on such a massive scale by the Government during its passage through the House of Commons—indeed, we have just been examining a new government amendment—indicates that it was prepared in great haste? Yet at the same time, the Government are insisting that the Bill must move very fast indeed towards the statute book. Can it be right to prepare a Bill so hastily that large-scale improvisations have to be made by the Government in extending it, even as they insist that it is rushed through and therefore skimpily scrutinised?

[Lord Falconer of Thoroton]

My Lords, I have to rise in relation to the rather casual accusation made by the noble Lord, Lord McNally, that it was just time-wasting down the Corridor. As the noble Lord will know, because he has been a Member of Parliament himself down there, the effect of the guillotine Motion—although he was perhaps not there when there were guillotine Motions—is that certain amendments are not reached because there is not enough time. The idea that they talked on and on to make it last seems to be misplaced. The worry about what the noble Lord said is that that casually dismissive remark is the sort of remark that is then used to dismiss parliamentary scrutiny of Bills—“we can dismiss what is being said because it is all time- wasting”. I thought one of the principles on which his party and the other party with which he is now in coalition put to the electorate was that we would respect Parliament more rather than treating it with the contempt he has just shown.

[Lord Campbell-Savours]

Before my noble friend sits down, I refer him to column 843 of House of Commons Hansard of 2 November where Bill Cash objected in the strongest terms to the fact that the Government, with the use of a programme Motion, were denying the House the right to debate large parts of the Bill. Is my noble friend aware that Conservative MPs at the other end are egging us on? We are telling them that we want to deal with the Bill in a reasonable way, but they are egging us on to block the legislation. Conservative MPs in the House of Commons want to use Labour Lords to block this legislation. I think it is quite appalling. What we are trying to do is simply deal with the legislation in the most professional way possible.

[Lord Falconer of Thoroton]

I did not know what Mr Bill Cash said in the other place but it would help in relation to respect for Parliament if the noble Lord, Lord McNally, would think about withdrawing what he said.

[Lord McNally]

I have been around this Parliament for 40 years and I do not need lectures from the noble and learned Lord about respect for its traditions and for its importance. I did not suggest anything other than something he knows darn well. For as long as I have been here, and long before, Governments have brought in guillotines and Oppositions have complained about lack of time and scrutiny. That is all that I said. That is all that is in Hansard. I am not going to take lectures from the noble and learned Lord about respect for this Parliament and its institutions. I have given my life to this. I believe in it passionately. I respect it as much as the noble Lord, Lord Rooker, respects it. No more, no less. But I am not being lectured to or allowing my words to be twisted. I am simply saying something that every noble Lord knows is a simple truth—nothing more, nothing less—and certainly with no disrespect to Parliament.

[Lord Rooker]

Say sorry to Chris, then.

[Lord Falconer of Thoroton]

I have understood the Minister to say that the interventions by Members of Parliament down in the House of Commons were done for time-wasting purposes. I regard that as expressing contempt for their contributions. That is what I was suggesting he might think about withdrawing.

[Lord McNally]

More than one person has commented that the Opposition spent overlong on certain parts of the Bill and then used that as an excuse for not dealing with other parts of the Bill. Just as I have argued with colleagues who have got a little tetchy about the Opposition’s tactics, I know full well that, as one of my old text books used to say, the principal weapon of an Opposition is delay. I do not object to that, but neither do I fail to recognise it when I see it.

[Lord Grocott]

This is a Bill of 300 pages—and I do not apologise for repeating this—which plans to change the constitution of our country. I hope the noble Lord is not arguing that to spend five days—I am speaking from memory now, but I am pretty certain that I am right—on the Committee stage in the House of Commons and two days on Report is an inordinate or generous amount of time. I hope he is not suggesting in any way, shape or form, that the time that we have spent in this House on the scrutiny of crucial groups of amendments is any more than they properly deserve. If he does think that, I would appeal to him to let us know which group of amendments should not have been discussed or were addressing anything other than very serious matters about our constitution. He gives the impression that he is very irritated—perhaps I am wrong, perhaps we are over-sensitive on this side—at every criticism of the Bill, and at any suggestion for any amendment. If that is the way he responds, I suggest he talks to his noble friend Lord Strathclyde, who has the capacity most of the time, at the other end of the scale, for making us think that what we are saying is important—what he privately thinks I do not have the faintest idea but I will give him the credit for giving that appearance—and at the same time being amused, not being tetchy and not being irritable. We could have moved on a great deal more quickly with this amendment. The noble Lord has wasted time.

While I am on my feet, the next amendments after mine are six government amendments. I hope that the noble Lord will not do anything other than a proper courtesy to the House in explaining these amendments in proper detail. I absolutely assure him that neither I nor any of my colleagues, and I suspect any on his side of the House, will accuse him of time-wasting.

[Lord Bach]

My Lords, I am surprised that my little amendment has developed into the excitement that we have enjoyed in Committee for the past few minutes. I have one serious point to make. I ask the Minister to reconsider his attack—maybe he did not mean the words, I do not know—on a particular individual at the other end who is a colleague of mine in the opposition justice team. It is an unwarranted attack on an individual. If the noble Lord wants to attack tactics, that is fine, but do not attack an individual, a Member of Parliament, for doing what most of us would consider to be his duty—and indeed what the noble Lord did so well when he was sitting on the Opposition Benches just a few months ago. Before I withdraw the amendment, I ask the Minister to consider—

[Lord Rooker]

I do not want to prolong this, but this is the result of this place not having a Speaker. In the other place, if anybody down there had said about somebody up here what was said by the noble Lord, Lord McNally, the Speaker would have ruled it out of order. You are not allowed to criticise named Members of this place down in the other place. There is no benefit to it, because we do not get anywhere doing it. We have no Speaker here to stop that kind of immature comment and we ought to have.

[Lord Bach]

I give the noble Lord the chance, please, if he will do that—

[Lord McNally]

If the noble Lord, Lord Rooker, wants to call me immature, that is part of the rough and tumble of politics. I am not going to say sorry. For goodness’ sake, again, I really hope that people outside read Hansard and then they can make a judgment about the handling of this Bill. I am willing to go into the details of this and argue it. We have had everything from the Mongolian elections to the sensitivities of—the Member for the Rhondda Valley, was it? I cannot remember which one it was.

[Lord Bach]

I am extremely disappointed that the Minister, who is normally a parliamentarian of the highest order, should on this occasion not think it right to withdraw what he said about an individual Member of Parliament. I very much regret that. It tempts me very much to call a Division on this amendment, but it is a temptation that I will resist, because I think it would be a mistake—

[Baroness Hollis of Heigham]

Spoilsport!

[Lord Bach]

Yes, spoilsport I may be, but on the basis of the debate that we had about the issue itself, the proper thing is to withdraw my amendment which I intend to do. However, I give the noble Lord just one last chance. Why not just say he is sorry for what he said about an individual Member of Parliament? His criticism has been heard. Why not withdraw it now? I beg leave to withdraw.

Amendment 40 withdrawn.

18:59

Amendment 40A

Moved by

[Lord McNally]

40A: Clause 7, page 5, line 34, at end insert—
““registration officer” has the meaning given in section 8 of the 1983 Act;”

[Lord McNally]

My Lords, if, when he reads Hansard, the Member for Rhondda is hurt by my remarks, I will try to comfort and reassure him that there was nothing personal in them.

These are minor and technical amendments which ensure that there is single definition of “registration officer” which applies throughout Part 1 of the Bill. This single definition replaces the existing definitions given in the various provisions in Part 1, but does not change the meaning. The amendments provide that “registration officer” has the meaning given in Section 8 of the Representation of the People Act 1983. For England, Wales and Scotland, the individual is the officer who has been appointed to this role for the relevant area. In Northern Ireland, the Chief Electoral Officer for Northern Ireland is the sole registration officer. I beg to move.

[Lord Falconer of Thoroton]

A drafting point: there appear to be random definitions contained in Clause 7(1). For example, we do not have definitions of “regulated transaction”, “responsible person” or “relevant donations”, which are terms referred to. Yet, suddenly, we have a definition of “registration officer”. What is the basis upon which some terms are defined in Clause 7(1) and not others? Will this not lead to confusion?

[Lord McNally]

As I understand it, this is an attempt to clarify the specific case of “registration officer”. We do not anticipate the kind of confusion that the noble and learned Lord anticipates in other definitions, but it is important to have a common definition for registration officers.

[Lord Falconer of Thoroton]

I do not want to be a total brute here, but will the noble Lord write to me? It is pretty clear what “registration officer” means throughout the Bill, but if you do not also define the other terms, there is the possibility that there will be some difference among courts as to what it is meant. Can the Minister set out the basis for selecting some terms to be defined but not others? If he would like to write to me about that, I would be perfectly happy. However, if we are trying to make this Bill a little better, setting out that basis is worth while.

[Lord McNally]

The noble and learned Lord has brought an entirely new atmosphere to the debate for which I am most grateful. I offer to write to him on the specific point.

Amendment 40A agreed.

Amendment 40B

Moved by

[Lord Grocott]

40B: Clause 7, page 5, line 37, leave out subsection (2) and insert—
“( ) A Westminister parliamentary constituency, as it exists on the day of the referendum, is a “voting area” for the purposes of this Part.”

[Lord Grocott]

My Lords, the amendment could not be simpler in its objective. It would shorten the Bill, and is about how the election will be conducted and declared. It refers to Clause 7(2) of the Bill, which says, in defining the various voting areas, that they shall be,

“a district in England … a county in England … a London borough … the City of London … the Isles of Scilly … a constituency for the National Assembly for Wales … a constituency for the Scottish Parliament … Northern Ireland”.

My amendment simply deletes all that and replaces it with the most commonsense way to consider and declare an election relating to the House of Commons: to say that the results will be declared on a constituency basis. It basically replaces 10 lines with two.

I am emboldened in moving the amendment, not least by the contributions of the noble Lord, Lord McNally, in his responses in various other clauses, where he has repeated time and time again that his intention is to follow as closely as possible what happens in parliamentary elections in all the details of how this referendum is conducted. I could quote any number of examples, and that is precisely what my amendment does. For example, in the debate the other day on whether voting in the referendum at the age of 16 should be allowed, the noble Lord said in rejecting the amendment:

“Then as now, the Government's position on the franchise and in all other aspects relating to how the referendum is run is that we should follow the arrangements for parliamentary elections”.—[Official Report, 13/12/10; col. 464.]

That is precisely what I am doing with the amendment.

Noble Lords may ask why. What is the point of having elections conducted and returned on the basis of parliamentary constituencies? The clue is in the Title to the Bill: the Parliamentary Voting Systems and Constituencies Bill. My reason for moving the amendment is that the Bill goes to the heart of the relationships between constituents and the Member of Parliament. That is what it is about, and why I and others are so concerned about it in many ways.

I will concede, perhaps the only concession I could make to supporters of the alternative vote system, that the proposal has the merit of not disconnecting Members of Parliament with their constituencies. I have long believed—and this is why I support first past the post more than any other system—that, to use the cliché, the jewel in the crown of the system of parliamentary elections in the United Kingdom is that there is this close link between Members of Parliament and their constituencies.

I am not criticising AV in suggesting that the results should be declared on a constituency basis. I am saying that the constituency results are important. Of course, I freely concede that the most important result of a referendum is to know what has happened nationally. You total the votes up and see who has won and who has lost; that is basically what happens. As I have said, however, this is about constituencies and the verdict of people in their constituencies. During the referendum, if noble Lords ignore the national picture for a moment, we are in effect saying to people, “For generations, your parents, grandparents and perhaps in some cases great-grandparents have returned Members of Parliament from this area”—which we hope is a coherent area, but we will come to that later in the Bill. “Are you happy with how you have been choosing your Members of Parliament? Because some people are saying that they are dissatisfied with how that is done”.

By returning the results in individual constituencies, you are at least relating the conduct and outcome of the election to the very heart of what this change in our constitution, should it be carried, is about. It is, frankly, pointless and irrelevant to do as the Bill does: to declare results on the basis of boroughs in the United Kingdom, for example. What on earth is the basis for that? Does it tell us whether the borough of this, that or the other voted for or against the referendum? Nor do I understand the significance of declaring one constituency for the whole of Northern Ireland.

[Lord Tyler]

As the noble Lord knows, I share his view about the connection between a representative and his or her constituency. He and I take that seriously. I am sure that he has looked at the evidence given by the Electoral Commission, to which many tributes were earlier paid for its independence and the care with which it is preparing for this. Therefore, does the noble Lord note that it summarises its view on his amendment by saying that it would create an unnecessary risk to the successful delivery of the scheduled elections and referendum? That is pretty specific. Will the noble Lord address that point? We are sympathetic to his general point. Our concern is the practical issue.

[Lord Grocott]

I will address that point precisely in a moment. I am currently simply pointing out that, in relation to a normal parliamentary election, to have the various categories of electoral district as laid out in the Bill offers meaningless figures. It is particularly confusing in Scotland and Wales, where the results of the referendum debate—which is, I repeat, about parliamentary elections—will be based on the constituencies of the National Assembly for Wales and the constituencies of the Scottish Parliament. I do not know too much about Scottish politics, but I do know that the constituency boundaries for Scottish parliamentary elections are different from the constituency boundaries for the House of Commons. It is suggested that that is not the appropriate area in which to consider and declare the results, but it simply makes the whole operation more confusing if they are declared on a different basis.

The noble Lord, Lord Tyler, rightly drew my attention to the wording of the report by the Electoral Commission. I do not think that I have ever been referred to by the commission before, so this is a moment in my life—I do not know about anyone else’s. I have to say that I have a fair bit of concern about what the commission has said, and I hope that when he sums up the Minister does not simply repeat it but gives some credence to the points that I am making. The commission says that:

“Amendment 40B seeks to change the voting areas for the referendum so that they are the same as UK parliamentary constituencies”—

the simplest possible proposition, of course.

“The voting areas currently in the Bill reflect the voting areas for the scheduled elections on 5 May 2011, the polls for which are to be combined with the poll for the referendum if they take place on the same day”.

That is a statement of fact, but now comes—for me, at any rate—the contentious bit:

“We understand”—

this is the Electoral Commission, the independent body to which the noble Lords, Lord Tyler and Lord McNally, have paid tribute—

“that it is the Government’s intention that the referendum should take place on 5 May 2011. We do not support this amendment as making such a significant change to the rules for the referendum this close to 5 May would create an unnecessary risk to the successful delivery of the scheduled elections and the referendum”.

Bearing in mind the unprompted mini-debate that we had earlier about how neutral the Electoral Commission could be, were it to provide a descriptive leaflet of AV on the one hand and first past the post on the other, the commission’s comment on this amendment rang alarm bells in my brain. It is not commenting in any shape or form on the merits of the argument that results should be by constituency; it is commenting on the basis of whether this would be convenient to the Government, who want the referendum on 5 May 2011. That is a pretty inappropriate thing for the Electoral Commission to say. By all means it could say, “The Government want to do this but of course that’s none of our business; they might change their mind”.

What is even more significant and concerns me, although I cannot believe it to be true, is that the Electoral Commission appears not to have seen the result of the amendment proposed by my noble friend Lord Rooker and carried, which gave the Government all the flexibility that they might need to deliver the Bill in a timely way with proper scrutiny. As it now stands, the Bill says that the referendum does not have to be held until October next year, which would give plenty of time for the oddity in the way that these election results are declared to be rectified.

This is not rocket science. Having a general election on the same day as local elections—maybe this is helping the Government, I do not know—is a tried and tested operation. To repeat myself, I am suggesting that the referendum should be counted just like general election constituencies. I have not done an exhaustive list, but we know that this year’s general election was held on the same day as local elections, as were those in 2001 and 1997. I am certainly not likely to forget the election in 1979 that was held on the same day, when the electorate decided that I should spend more time with my family; that is an election that I will not forget in a hurry. The idea that somehow the electoral administrative machinery cannot cope with dealing with results by constituency on the same day as local elections seems to be negatived by experience.

I am concerned that the Electoral Commission, no less, should be advising us to turn this amendment down—and I hope that I have demonstrated that it is at least worthy of consideration—on the grounds that it does not meet the Government’s timetable. When the Minister comes to respond to this, I hope that he does not use that argument. As I said when I intervened on my noble and learned friend Lord Falconer earlier, I feel a bit hurt by all this, or maybe he should, because when he proposed the amendment earlier today he was able to quote the Electoral Commission as broadly agreeing with what he was saying but it did not recommend that we should vote for his amendment. Now it broadly disagrees with what I am saying but it is telling the House to throw it out—and, by implication, the noble Lord, Lord Tyler, obviously takes it very seriously. Perhaps I should not take this personally.

19:15

[Lord Rennard]

I wonder whether the noble Lord is trying to make it difficult for the referendum to be held on 5 May, in contrast to the noble Lord, Lord Rooker, who said specifically that he was arguing in his amendment that the referendum could be held on 5 May or at a later date if that was more convenient. Is the position of the noble Lord, Lord Rooker, not wholly different from that advanced by the noble Lord, Lord Grocott, who is trying to make it difficult to have the referendum on the day that the other place has voted for it to be held on?

[Lord McAvoy]

I do not want to raise the temperature again, but nevertheless this point has to be made: does that intervention from the noble Lord, Lord Rennard, not indicate clearly that there is no filibustering going on, there is no organisation and what is happening here is genuine scrutiny?

[Lord Grocott]

Since the degree to which we are genuine is being tested at the moment, the House will simply have to accept my absolute, total, 100 per cent, categorical—I cannot think of any other adjectives—assurance that when I tabled this amendment, I did so, believe it or not, because I thought that it would be a better referendum if the results were declared by constituency, which is never normally a problem in general elections. It came as a surprise to me that the Electoral Commission thought that there would be all sorts of administrative problems in doing so, particularly—I am repeating myself now, I know—because time and again local elections and parliamentary constituency elections have been held on the same day.

I hope that the Minister’s notes do not say that this is just another silly amendment from the Opposition and that it should be knocked down. I hope that he recognises that there are people who have lived and worked in areas of this country, many of them for generations, who are used to the system under which they are operating and who wish to cast their vote—though not enough of them, I believe, as I fear that the turnout will not be very high. Still, there is a good possibility, although perhaps this is wishful thinking, that the majority will decide that they think the system under which they have been operating is quite good, and they should be allowed to express their own views within their own individual constituencies. That is all that my amendment is trying to do. I beg to move.

[Lord Rooker]

My Lords, I did not really see the significance of my noble friend’s amendment when I was reading through the Bill, and I missed this.

I am thinking back. I know that we are going to be told that the 1975 referendum was not declared by constituency. If I remember rightly, one of the arguments used at the time was, “It would be very uncertain if MPs who had campaigned on one issue about the EU found that their constituents had gone against them”. I recall it being a bit mixed up. I was part of the no campaign, in that sense—I certainly voted no, anyway. In this case, though, the issue is very personal to the MPs concerned because it is about their voting system.

Take the districts. I used to represent part of Birmingham. The whole of the city gets lumped together, no one gets embarrassed about which way a particular constituency has gone and everything is in the melting pot. It is easier to count when all the constituencies have been lumped together, but where does that leave the Members of the Welsh Assembly and the Scottish Parliament elected on that day? They will be out campaigning. The results will be declared in their constituencies for AV or not. So, you will be covering it up for some so as not to cause embarrassment, but not for others.

I am unaware of a constituency called “the Isles of Scilly”. If I remember right, the Isles of Scilly are part of a constituency on the mainland. That is my understanding. Why on earth are they singled out in this way? On Northern Ireland, I hope that we will not have the argument about there being an east and a west and a green and an orange. We do not want any arguments about which constituency went which way. We do not want any arguments about lumping it all together. You cannot use all these arguments to defend this set of voting declarations. Whichever you use for one is contradicted by the other.

It cannot be being done for the administrative convenience for the Electoral Commission. It is not doing the counting. The counting officers are doing the counting—a well-oiled machine, highly sophisticated in counting votes in this country based on wards and constituencies. I freely admit that a little bit went wrong but not on the counts. Why deviate from that? Why deviate from the tried and tested system that we know works for counting? People know where to go. They know where their counts are. The type of people who do the counting go to the same place virtually every year and are almost on a permanent contract. Why interfere with a system that works? I have offered up some of the issues.

I would like an explanation about the City of London. Normally when there is a count for the constituency, are we referring to the City of London as the city or as the constituency of the City of London, because it is not quite the same, is it? I am not certain. I am a bit out of touch. Is it a constituency or not? I am not certain why the Inner and the Middle Temples should be treated differently. It is reasonable to have an explanation for each one of these because the answer to one has to contradict the answer to another. So I await with interest the response of the noble Lord, Lord McNally.

[Lord Howarth of Newport]

I support my noble friend Lord Grocott. This referendum is to be about the choice of a parliamentary voting system, so it is bizarre not to declare the results on the basis of parliamentary constituencies. If it were a referendum about how local government is organised, one might see some sense in the stipulations—districts, counties, London boroughs and so forth—that are set out in Clause 7(2). However, those units are irrelevant to the question at issue in this referendum, so my noble friend’s case is self-evidently sensible.

I also join my noble friend in his mild but firm stricture on the intervention of the Electoral Commission. The proper responsibility of Parliament is to ensure that the system put forward in this Bill is well designed. The expedience for the Government of ensuring that the referendum takes place on 5 May must be a secondary consideration. I would have hoped that the Electoral Commission would also want to make it its priority that the system that it is there to oversee and to administer is appropriately designed. I am disappointed that it has not done so in this case.

[Lord McAvoy]

My Lords, I rise briefly to indicate my support for my noble friend Lord Grocott’s amendment. As a former Member of Parliament for a Scottish constituency, I can bring a perspective as to how this will be viewed. As my noble friends have said, this proposed referendum is on a voting system for Westminster. It seems incongruous and, quite frankly, plain daft that the results will not be declared on a constituency basis. These days, when people are looking for more transparency and accountability from MPs, it is absolutely right that, if it is an embarrassment to the MP if the constituency goes a different way from the way he or she campaigned, that should be known. So be it—that is the way it is.

As a unionist, I take exception to the fact that Scottish Parliament seats seem to be given primacy over Westminster seats when it comes to a voting system for the Westminster sovereign UK Parliament. It is wrong in principle and sends out the wrong messages. It will give further incentives and justification for those in nationalist politics in Scotland to continue that drive to say that somehow we in Scotland are different from our friends, neighbours, relatives and colleagues in England, Wales and Northern Ireland. No, we are not. We are all part of a British state. As well as being proud of our individual countries, we are British citizens. There is nothing wrong with that at all.

These proposals are an indication that the Bill has been rushed. Time and again we have come up against things which it would seem common sense to do but which are not done. The fact that these things have not been done is not part of any great malicious master plan, in my view. It is the result of a rush to judgment and to get this Bill through. There is a whole host of things in this Bill that should have been more carefully thought out. There are plenty of experienced people on the other side who I am sure, if they had had their time, would have framed the Bill more accurately and thoroughly.

I totally accept that people have different opinions in Scotland but for my part and, I am quite convinced, for the majority in the constituency of Rutherglen and Hamilton West the Westminster Parliament is—I say this without any disrespect to the Scottish Parliament—the prime Parliament. I can imagine hearing the howls of anguish—“Trust the perfidious English!”—if the Westminster Parliament organised a referendum for the voting system for the Scottish Parliament that did not give due respect to the Scottish Parliament, the forum for which it was proposing a change in the voting system. What is good for the goose et cetera.

The noble Lord, Lord McNally, has paid tribute to my noble and learned friend Lord Falconer for lowering the temperature a wee bit. It is certainly not in my nature to up the temperature. It might be stretching credibility to say that I feel intimidated but I certainly feel on occasion a bit reluctant to come forward to speak. Time and again I hear not only the accusations from the Front Bench on the other side but also the sneers and ridicule from other parts of the Chamber when somebody rises to make a point. This is the third time that I have spoken this evening. The other two times I spoke for two or three minutes. That is hardly filibustering, dragging things out or not co-operating. It is making sure that the Bill is scrutinised and that we can come forward and point to things that we believe are wrong. There are differences of opinion—a whole host of them. There is no concerted effort from this side of the House as far as I can see. I am certainly not part of it.

I will not repeat my noble friend Lord Grocott’s quotation from the Electoral Commission. However, it quite took my breath away that the Electoral Commission—a so-called independent organisation—in effect tells Members of this House not to put forward or vote for any change because that would prevent the Government from having the referendum on 5 May. It is breathtaking and quite disgraceful. I hope that we do not get any more of that sort of comment or, quite frankly, blackmail from the Electoral Commission. I support my noble friend.

[Lord Bilston]

My Lords, I, too, support my noble friend Lord Grocott’s amendment. I hope that the noble Lord, Lord McNally, will accept it because, as has been pointed out, this is very much an issue for constituencies. I was privileged to represent my constituency for many years—for 14 elections. I lived and worked as the local representative for over 40 years.

As an aside, let me say that not one person has ever said to me, “You are illegitimate because you haven’t got 50 per cent of the vote”. In all the time that I represented the constituency that I was proud to represent, I served all the people. That constituency of Wolverhampton South East will figure in the voting on 5 May next year. I shall be there, campaigning, to make sure that the people of my constituency—where I live—are given the opportunity to vote. I shall tell them that they should make sure that they cast their vote for no because this is the system that they fully understand. I shall do that with the help of many of my Conservative colleagues in Wolverhampton and we shall be challenged by the Liberal Democrats.

My point is that the campaign will be based on constituency boundaries. That is how this referendum should be fought, because the people in every constituency should have the right to say aye or no in it. As I say, I genuinely hope that a multitude of people—not a low vote but a substantial, solid vote—will say no in this referendum, which should be based on our constituency boundaries.

19:30

[Lord Campbell-Savours]

My Lords, I briefly intervene to raise something that has not yet been raised. It is to do with the relationship between Members of Parliament in particular parts of the world. The noble Lord, Lord Tyler, referred to a practical issue and it is a practical issue that is of interest to me. I have been sitting here pondering how this would work. We are told that the yes campaign will essentially be a people-based campaign. There is a feeling in the yes campaign that the intervention of politicians might be unhelpful. However, the reality is that politicians, particularly MPs, will want to be involved. It will not be possible to keep them out, particularly where they may have a strong view. Yet the fact that the legislation is framed in this way might lead to campaigns being organised on a district-wide basis. I know that, in the Labour Party, district parties are never as well organised as the constituency parties. I presume that this might well be the case for other political parties.

I suggest that a campaign that is essentially district based might diffuse the role that the MP might wish to play in its organisation. MPs may well find, if the campaign is district organised, that they have to go into neighbouring constituencies. When MPs go into neighbouring constituencies, it often leads to problems—indeed, to problems inside parties, where people from the same political party represent neighbouring seats. In a curious way, by organising the campaign on a district-wide basis, we might interfere to some extent with the role that Members of Parliament wish to play in the campaign because they simply want to avoid argument. The point that I am making is rather subtle in that it deals with relationships between MPs, but the Government should not altogether ignore what I am saying. Ministers in the Government will know from experience that what I am referring to is a reality.

[Lord Falconer of Thoroton]

My Lords, this is a serious and sensible amendment. It would take some persuading on the part of the noble Lord, Lord McNally, to convince people that my noble friend Lord Grocott’s proposal is not the more sensible approach.

I will explain what the Bill currently proposes for the referendum in Clause 7(2). It proposes to divide the whole country into a series of voting areas: a district in England where there is a district council; a county in England where there are no county councils; a London borough; the City of London, including the Inner and Middle Temples; the Isles of Scilly; a constituency for the National Assembly for Wales; a constituency for the Scottish Parliament; and the whole of Northern Ireland. In relation to those eight separate sorts of voting area, paragraph 2 of Schedule 1 proposes that a counting officer be appointed. In each of those voting areas, the counting officer is in charge of the vote in that area. After the votes have been cast, the counting officer hands to the regional counting officer the certificate of the votes cast. At the same time, with the regional counting officer’s permission, the counting officer makes public how everybody has voted in the voting area. That is except in Northern Ireland, where there is no regional counting officer. The counting officer in Northern Ireland hands over his votes to the chief counting officer, who also then gets all the votes from the regional counting officers. Then the chief counting officer makes an announcement about how the votes have been cast nationally.

That means that the public will become aware of how people have voted in the eight different sorts of voting area specified in the Bill. For example, people will know how a London borough has voted and how Northern Ireland as a whole has voted, but not how individual constituencies have voted in Northern Ireland, whether they are individual constituencies for the Northern Irish Assembly, local authority constituencies or parliamentary constituencies. Nor will it be possible to work it out, because the voting area is the whole of Northern Ireland. In London, you will not be able to tell how individual constituencies have voted.

What is the purpose of this extraordinarily complicated system? Is it, I ask myself, trying to parallel where elections are taking place on the same day as the proposed referendum, namely 5 May? No, because in Northern Ireland the whole of the country is chosen to be the voting area. No, because in London there will be no local authority elections. In Scotland there will be voting in Scottish Parliament constituencies but local authority elections will also be going on. On the face of it, this seems to be an overcomplicated system for identifying voting areas, in which the disclosure of how the votes are cast bears no relation to either parliamentary constituencies or anything else.

The noble Lord, Lord Grocott, has pointed out that a theme has run through the responses of the noble Lord, Lord McNally, to all this. It is that the Government have tried, in putting forward practical proposals, to stick to the normal electoral arrangements. I have never seen these electoral arrangements in any other sort of election. They are overcomplicated and arbitrary in terms of the areas in which declarations will be made, whereas a network of arrangements already exists for parliamentary constituencies. Whenever an election is called, it seems possible to set up a system for declarations and results. On the face of it, the parliamentary constituencies network looks to be far and away the most straightforward and practical. It does not involve these extraordinarily complicated arrangements. Why is the proposal of the noble Lord, Lord Grocott, not a simple way of giving effect to the sort of proposition that the noble Lord, Lord McNally, has been making?

[Lord Rennard]

In terms of simplicity for the counting areas, does the noble and learned Lord not accept that in Scotland the proposal of the noble Lord, Lord Grocott, would make things rather more complicated? His amendment suggests that the voting areas should be based on Westminster parliamentary constituencies. If the referendum is held on 5 May next year, as is envisaged as a possibility even under the amendments of the noble Lord, Lord Rooker, and if you are counting the votes on the basis of Scottish parliamentary constituencies rather than on the quite different boundaries of the Westminster parliamentary constituencies, it is impractical to have one set of counting areas for the referendum and a different set for the elections to Scottish parliamentary constituencies. Therefore, the reason for the amendment is to try to make it impossible, or at least very difficult, for the referendum to take place on 5 May, and is not in the interests of simplicity, as the noble and learned Lord suggests.

[Lord Falconer of Thoroton]

I take the point in relation to Scotland. That is probably the only place where one can see some logic in the proposals. However, one cannot see any logic in relation to the rest of the UK. Therefore, maybe the answer—and if the noble Lord were to make proposals on this I might support him—is for us to stick with the Scottish constituencies, but leave everything else to be done on the basis of Westminster constituencies. There needs to be some explanation for why this extraordinary procedure has been adopted.

In addition to the points about practicality, there are two others. First, we have to do this without the benefit of the Electoral Commission’s views, because, as the noble Lord, Lord Grocott, said, the commission has said that that would simply delay the referendum. Sadly, the commission has not given this House the benefit of its views on whether this proposal is more practical than the one in the Bill. Secondly, there is a real force in the argument which states that if we are talking about parliamentary constituencies and how they vote in the future, there is a logic and a force in saying, “Let’s see how individual parliamentary constituencies voted”, because, for the life of me, I cannot see the logic in saying, “We’ll disclose how a London borough or the whole of Northern Ireland voted, but we won’t tell you how individual constituencies voted”.

[Lord McNally]

My Lords, if anything that has happened over the past four hours suggests that I am not enjoying this process, it is entirely untrue. I will write to Chris Bryant in the morning. I would not want him to think that I was attacking him personally. I am certainly not someone who has objected to the interventions of the noble Lord, Lord McAvoy. A number of Labour MPs have stopped me with a look of sheer amazement and said, “You heard Tommy McAvoy speak?”.

On the point about the Electoral Commission, I hope that noble Lords do not put sinister interpretations on this matter. If our intention is to hold the referendum on 5 May, as is absolutely clear and we continue to make clear, it is no more than the Electoral Commission’s duty for it to say that, if amendments A, B or C were to be passed, the House should be aware that this would make the situation more difficult, impossible, or whatever. The commission should not leave the House to pull the trigger and not tell it whether the gun is loaded. I do not think that the commission has done any more than that. If the Committee wants to pass the amendment, knowing its repercussions, it is open to do that, but it is not improper to say that there would be consequences to an amendment such as this.

Being a skilled advocate, the noble and learned Lord, Lord Falconer, can draw out these various bodies and make a case for a real mishmash of voting areas. In fact, the provisions that we have included in the Bill in relation to voting areas for the referendum ensure, as much as possible, that the same boundaries will be used for the referendum on the voting system as are used for other polls with which the referendum is combined. There is nothing more or less to it than that. The intent of the clause—as is the case in so much of the Bill—is to make the core decision that the electorate are being invited to make as simple as possible.

On the specific question of the noble Lord, Lord Rooker, I can tell him that the City of London is designated separately because, as he will know, it is a separate local government area within London. The other areas are the London boroughs.

19:45

[Lord Falconer of Thoroton]

If the principle is that the counting areas for the referendum are to be as close as possible to those for the other elections taking place on the same day, why will there be one counting area for the whole of Northern Ireland, given that it will be holding Assembly elections on the same day?

[Lord McNally]

I will write to the noble Lord on that. It seems that one element of confusion is that we are not asking United Kingdom constituencies to make a decision—we are asking for a national vote. It will be a yes or no poll, designed on a national basis.

[Lord Howarth of Newport]

My Lords, I understand the argument about administrative convenience and, of course, that argument is not negligible. However, does the Minister not think it is important that people should know how the votes have been cast, parliamentary constituency by parliamentary constituency, on what the future electoral system for those constituencies should be? Surely that is a matter of some importance to not only Members of Parliament but members of political parties, the generality of citizens and those who seek to evaluate and learn the lessons from this campaign. This is an important consideration which should not be set aside simply on grounds of administrative convenience on the day.

[Lord McNally]

I stand by the case for administrative convenience, but the fact that there will be a national vote, not individual constituency decisions, is the important issue. In fact, I had forgotten, until the noble Lord, Lord Rooker, helpfully reminded me, that the referendum in 1975 was not declared on a constituency basis, partly because the whole point of a referendum on an issue such as this is to get a national decision. These provisions are designed to make the voting process easier and more straightforward.

[Lord Rooker]

I accept that. However, the referendum in 1975 was to make a decision on whether the country—I repeat, the country—should stay in the EU or not. On 5 May next year, the issue is whether 650 individual constituencies should use a different voting system.

[Noble Lords]

No!

[Lord Rooker]

Of course it is. Therefore, people are entitled to know at a local level. While the noble Lord is on this point, I should say that only the count is affected here. If there is a delay in the count, so what? The Electoral Commission cannot delay when the voting take place, but what happens after the close of polls and the way that the votes are counted is what my noble and learned friend is on about. If it takes another half a day to count the votes and divide them, so what? That cannot delay the poll. It cannot affect the target date of 5 May, can it?

[Lord McNally]

I am not sure that I accept the argument that there is an overwhelming interest in knowing the results of a national decision constituency by constituency.

[Lord Rooker]

Perhaps MPs should have a free vote when the Bill returns to the other place. Let them decide; after all, they are the ones with the supreme vested interest. There is no interest more vested for an MP than their constituency boundaries and knowing what their constituents actually feel.

[Lord McNally]

As the noble Lord said, they have a vested interest. I want to make a national decision in the national interest.

[Lord Lamont of Lerwick]

I accept the argument that the noble Lord is putting forward, though there remains the mystery of Northern Ireland. However, there is also the mystery of London. Why is London on a borough basis when there are no elections in the boroughs?

[Lord McNally]

I suspect that, again, the decision is based on administrative convenience, which is not a dishonourable reason. What we are trying to do, as I have said so many times before, is to make the procedure as straightforward as possible. I believe there was an amendment in the other place. Perhaps, when this Bill goes back to the other place, Mr Chris Bryant will put down an amendment for a constituency base.

[Lord Howarth of Newport]

Is the noble Lord really saying that it does not matter whether Members of Parliament hear the voices of their constituents, and whether Members of Parliament know what judgment their constituents have come to on this matter of what the parliamentary voting system should be?

[Lord McNally]

The noble Lord is a master at pious interventions. Members will campaign, make their voices heard and assess their constituencies. I give way to my noble friend.

[Lord McAvoy]

I am grateful to the Minister for giving way. The year 1975 was a long time ago. The year 1997 was a long time ago. Surely a general election is also a national poll affecting the whole country, and that is declared by constituency. What is wrong with moving away from the old superior top-down style of saying, “Well, the country will vote and you won’t know locally”? Surely that is progress.

[Lord McNally]

The country will know locally. However, we are making a national decision. We are adopting systems and procedures which make things as simple and straightforward for electors as possible.

[Lord Campbell-Savours]

Perhaps I may ask a question which is very relevant. For a moment, the Minister obviously felt that Chris Bryant of the other place would have the chance to table an amendment to deal with this matter, but he cannot do that under the procedural arrangements because we are going to ping-pong. If that is the case, could the Minister accept the amendment and enable Members in the other place to do precisely what he suggested that they might wish to do?

[Lord McNally]

That is a merry thought, but no. We will resist this amendment and we urge the noble Lord to withdraw it.

[Lord Grocott]

My Lords, any neutral observer would say that this is a simple and straightforward proposition that the results of a referendum about parliamentary constituencies should be counted and declared on the basis of parliamentary constituencies. It is not rocket science and it is not complicated. It is common sense, and I think the Minister knows as much. What has been established in this debate—I had not realised how clearly it would be established—is what a complete dog’s breakfast the list of counting districts is in the Bill. I will not go through the list again, but it is pretty random. It is a case of: wherever you can find a returning officer, let us have an election counted and declared. It is of no significance, no interest and no consistency that I can see.

I remind the Minister that we do not hold referenda or make decisions in this House on the basis of convenience for the Electoral Commission. The Electoral Commission’s report is essentially saying “It is not a convenient way of doing it”, which was the nub of the argument that the noble Lord, Lord McNally, presented to us—that it was much more convenient to hold elections on the basis of these various randomly selected electoral areas as determined in the Bill. I believe that my noble friend Lord Howarth made the point that it is treating a national referendum on changing the constitution as being a secondary event on the day—“Oh, we’re counting borough elections, so we might as well count the referendum within the same electoral areas”. If I may say so, all the arguments on any kind of coherent principle have been on one side, and the arguments for convenience have been on the other. Indeed, he admitted it was for convenience and I do not think I am misrepresenting him.

[Lord McNally]

It is for the convenience of the electorate.

[Lord Grocott]

I would have thought that the convenience of the electorate and certainly respect for the electorate would be in constituencies, which is what the Bill is about. We should let them know the result of their own votes, and we are not telling them that. I find this particularly astonishing from a Liberal Democrat, and from other Liberal Democrats here, who have been telling us for as long as I have been in politics that people have been queueing up to change the electoral system in this country—that they are desperate to get rid of it. I would have thought that they would have looked forward with pride to a returning officer in their constituency or their former constituency declaring the massive support within their area for the alternative vote system of elections. They may not, of course, and it seems to me that doubts are growing as I look at the faces opposite. However, if the Minister is really saying that we should not do it on this basis, I am afraid that it has been characteristic, and it inevitably builds up frustration, that we make perfectly sensible, straightforward, logical proposals here which are in the interests of the electorate, and they are dismissed in a few sentences. Therefore, I wish to test the opinion of the House.

19:56

Division 2

Ayes: 90

---

Labour: 81
Crossbench: 4
Independent: 2
Bishops: 1
Ulster Unionist Party: 1

Noes: 161

---

Conservative: 100
Liberal Democrat: 52
Crossbench: 6

House resumed. Committee to begin again not before 9.07 pm.

Loans to Ireland Bill

Wednesday 15th December 2010 Lords Chamber

First Reading

20:07

The Bill was brought from the Commons, endorsed as a money Bill, read a first time and ordered to be printed.

Hospices and Palliative Care Services

Wednesday 15th December 2010 Lords Chamber

Question for Short Debate

20:08

Asked by

[Viscount Bridgeman]

To ask Her Majesty’s Government what plans they have for the future of hospices and palliative care services.

[Viscount Bridgeman]

My Lords, I hope that we shall have an hour of singing from the same hymn sheet. I am very grateful for the opportunity to introduce this debate on this most important of subjects. It comes at an important time for the hospice movement in the United Kingdom, for the interim report of the independent funding review has just been released. On 11 November, the noble Baroness, Lady Finlay of Llandaff, led with great distinction a debate on palliative care for cancer sufferers, and this debate, I suggest, is entirely complementary to that one.

I declare an interest as the former chairman of St John’s Hospice in central London. This is one of a number of hospices which cater for the three main killer diseases: cancer, HIV/AIDS and motor neurone.

No debate on palliative care or end-of-life treatment is complete without the mention of Dame Cicely Saunders, who is widely accepted as having founded the hospice movement in the United Kingdom. It is a worthy tribute to her memory that a recent report by the Economist Intelligence Unit puts the United Kingdom first, ahead of 39 other countries, in the provision of end-of-life care, and this was attributed in part to the “well-established hospice movement”.

In the short time available to me, I wish to speak briefly on funding. In the past, there has been a certain complacency on the part of every Government towards the funding of hospices. The unadorned truth is that any Government are well aware that any shortfall will in the end be made up by way of appeals and fund-raising and that, to put it bluntly, it will be all right on the night. On the whole, Governments of all hues have got away with it, although I pay tribute to the previous Administration, who made available £40 million to improve the environment of palliative care. In the case of the hospice with which I was associated, its share was gratefully put to good use in improving out-patient facilities, and the confirmation of this grant by the present Government is to be welcomed.

Up to now, there has been no national tariff for hospices contracted to the NHS. The disadvantages of this are obvious, as it makes it difficult to produce long-term strategic budgets, and inevitably it means that the funding as between different hospices is going to differ significantly. Additional funds invested through the end-of-life care strategy have not been invested in a consistent way. In many cases, hospices are forced to carry an overhead for negotiating staff with the many PCTs to which they are contracted, and they are ill-equipped to afford this. Some of the less well-resourced establishments inevitably lose out. I would mention that a joint report by Healthcare at Home and Dr Foster estimates that delivering end-of-life services in the home could save the NHS £160 million a year.

I am very pleased that the NHS tariff group is reporting on behalf of palliative care. Now we have a real opportunity in the review of commissioning to move towards 100 per cent funding across the board. However, does that mean that fund-raising from the third and voluntary sectors will no longer be required? Most certainly it does not. It will simply mean that that part of a hospice’s expenditure which is clearly clinical will be looked after within the commissioning structure, leaving those involved in fund-raising to concentrate on amenities such as day centres, bereavement counselling and the training of volunteers and carers, which are not part of the NHS’s responsibility.

Before leaving the subject of funding, I wish to mention the particular case of children’s hospices, where currently the contribution to operating costs tends to be at the lower end of the scale, although I am aware that these hospices are likely to receive a greater element of mainstream primary care than their adult counterparts and they also receive Section 64 additional funding. The number of children with life-terminating illnesses is, mercifully, relatively small. Nevertheless, there is a danger that for that very reason the special needs of children's hospices may be overlooked. I hope that that will be recognised in the current review.

As the population ages, so will the burden of care increase. There will be more long-term conditions and, with those conditions, there will inevitably be symptom-control elements, and it is those that palliative care must address. It is fair to say that all the national strategies for older people and those with dementia recognise the role for palliations, and I hope that the department will ensure that that is reflected in the commissioning structures which, I hope, will be the product of the fundamental review.

I turn to community support. Speaking in the debate initiated by the noble Baroness, Lady Finlay, on 11 November, I referred to the totem of the hospice movement being hospital avoidance—and for hospital, you might read, hospital and hospice avoidance. The apparent paradox of all debates on hospices is that we are talking about ways to avoid using the institution itself and moving the emphasis of patient treatment away from acute into community and primary care settings, which, apart from freeing up beds for unavoidable acute cases, has the incalculable benefit of letting patients choose their place of care, and possibly where they will die. In that debate, several noble Lords referred to that. It is important that the primary care trusts—or, as they will now be, GP funding consortia—should record as early as practicable patients’ preferred place of death. My noble friend was very helpful on that point at col. 322 of the Official Report of that debate. However, I should welcome his confirmation that that will become a statutory obligation.

I mention as an example of admirable community support the single point of access project in Westminster. The project delivers a single telephone number for patients to use to access all palliative care services in the borough. It has been made possible only by numerous teams giving up their systems and working together with the out-of-hours GP co-operative to run the system. With the impending amalgamation of services between Westminster, Kensington and Chelsea, and Hammersmith and Fulham, it is to be hoped that that service will be available in all those three boroughs with the minimum of bureaucracy and optimal cost savings, and that that will form a useful pattern for other authorities.

An important component of that scheme is out-of-hours work. That is of concern to all branches of primary care, but it is particularly vital with palliative care, for one simple reason: pain does not keep office hours. I know that the matter of 24-hour cover is already being addressed across the country. Currently, it is piecemeal, with services varying from telephone advice only to personal visits. The palliative care funding review, in its interim report, recommends that the Government use the forthcoming NHS operating and outcome frameworks to ensure that a structured 24-hour service is put in place.

Finally, I say a word about education. This is of course a subject in itself and time does not permit more than a passing reference to it. Palliative care is now included in GP training, but that specialised training needs to extend right across the palliative care community, from qualified doctors to undergraduates and carers—both hospice-trained and from outside. Training is too big a subject to be left to the charitable sector. I hope that the Minister will confirm that it is to be given high formal priority in the commissioning structure.

We in the United Kingdom can take pride in the leadership that we have given to the hospice movement worldwide, achieved through the dedication and commitment of staff, consultants and volunteers. They deserve our gratitude. I end by thanking those noble Lords who have chosen to take part in the debate. I look forward to their contributions and to the reply from my noble friend.

20:17

[Lord Faulkner of Worcester]

My Lords, I congratulate the noble Viscount, Lord Bridgeman, on securing this debate, and I welcome this chance to express my admiration for the wonderful work that is performed by our hospices across the country.

I speak with first-hand experience of two hospices which I have got to know in the City of Worcester in the past year. They are Acorns Children's and St Richard’s Hospices. I found my visits to them both heart-warming and humbling. The most impressive feature of both—apart, of course, from the quality of the care that is provided at them—and this is true of other hospices all over the country, is the commitment of volunteers. Acorns in Worcester, for example, is able to draw on the support of 250 volunteers who cook, clean and do the gardening for them. St Richard’s tells me that it has 900 volunteers who, last year, saved the hospice £765,000 in wages, had they needed to pay people for the jobs they did. Charity shops are of course also a hugely important revenue stream. St Richard’s has more than 350 volunteers in its shops, which can be found across the county selling furniture, electrical items, books, women's and men's clothing and bric-a-brac.

Both hospices benefit greatly from the extraordinary generosity of local philanthropists and other members of the local community. One of the most remarkable people in Worcester is Mr Cecil Duckworth, who is a freeman of the city and a massive donor to Acorns, the building of which was largely down to him and his generosity, and to an 84 year-old lady who lives next door to the hospice and donated the land free of charge.

Mr Duckworth's other great contribution to the City of Worcester is to bring top-class rugby to the city. His Warriors team runs an ambassadors scheme in which three players a week visit the hospice. They were there on the day when I visited. He allows for a constant stream of fundraising events at the Sixways ground, where the Warriors play, such as a fireworks display. The home match on Boxing Day will be given over to raising money for Acorns, and the players will be wearing a shirt designed by their children. St Richard’s will also have 20 volunteers at the game selling raffle tickets for their car draw.

Another great supporter in the city is the mayor, Councillor Mike Layland. Last Tuesday he was pulling pints at a local bar which was donating all the takings over a two and a half hour period to Acorns because that is one of the mayor’s chosen charities.

At present, around a third of the running costs of each hospice is covered by statutory funding, but there is great uncertainty about whether this will continue with the reorganisation of the National Health Service. The replacement of PCT commissioning with GP commissioning is not suitable for many hospices—in Acorns the children are looked after by consultants and not by GPs—and a centralised tariff-based system that produces a minimum of 30 per cent of the hospices’ care costs is needed.

It is very hard to think of a better representative of the big society than the hospice movement. I hope that when he replies the Minister will be able to give some reassurance about future levels of funding.

20:21

[Lord Alderdice]

My Lords, I thank my noble friend Lord Bridgeman for not only securing the debate but for introducing it with his usual elegance and eloquence. I identify myself both with his comments and those of the noble Lord, Lord Faulkner of Worcester, in praising the importance of the hospice movement and its work, the significance and value of voluntarism, and the need for public, financial and other resource support.

In the short time available to me I wish to address one specific issue—the need for thoughtful and real support for the staff who work on the front line in the hospices. Some years ago I became aware of this issue when I was doing a consultancy for the Belfast Hospice. It became apparent to me that there is a specific kind of emotional strain and stress on those who work in the hospice movement on the front line with the patients. With all other forms of care, there is a variegation of patients and the acuteness of their problems. However, in a hospice, when a patient comes in everyone knows that this is moving towards the end and there is an intensity about the emotional involvement that is quite unique.

In addition, the situation moves inevitably to a form of bereavement. Even if the patient moves out of the hospice and comes back in, it is inevitably moving in that direction. As human beings we are created in such a way that we can deal with bereavement and emotional intensity, but what I saw with some of the hospice workers who were working on the front line with patients was a psychological equivalent of march fractures. All the time there was the development of a close emotional bond and then the experience of bereavement—and then straight into the same situation again and again and again. Many of those who experienced this time after time themselves became subject to emotional trauma—sometimes they fell physically ill—after a number of years.

If these workers were able to move out into another aspect of hospice care—education, administration or teaching—or to move into the NHS and bring with them their experience of palliative care, pain relief and dealing with cancer and other terminal illnesses, they would be freed of that emotional involvement and make a tremendous contribution. The burden of my request to my noble friend is that the NHS will engage with the hospice movement to provide opportunities for support and constructive engagement that values the experience of those involved in the hospice movement but ensures that they do not find themselves suffering because of the enormous emotional commitment they made to this peculiarly special and costly form of caring.

20:23

[Baroness Masham of Ilton]

My Lords, the noble Viscount, Lord Bridgeman, who is chairman of the Hospital of St John and St Elizabeth in London, takes a great interest in everything. I visited the hospice attached to that hospital with the All-Party Parliamentary Group on HIV/AIDS some time ago. The hospice does not discriminate—it takes people who have HIV, cancer or some other condition. People can die in a safe place and receive spiritual support from people who understand their conditions.

Some of the children’s hospices now have units for teenagers. This is a very good development because teenagers do not fit in with small children or adults; they need their own space. The hospice at Boston Spa in Yorkshire has such a facility.

I also visited the hospice at Sunderland which is, I am told, the only hospice in the UK that is solely funded by the NHS. I ask the Minister whether, once the GP consortium comes into being, this hospice will still be funded by the NHS. There are dedicated people working in the NHS but, with so many cuts emerging, questions need to be answered to give reassurance to those who feel vulnerable.

Many children with muscular dystrophy need to be able to swim to help their condition. I am told that some of the hospices have swimming pools. Would it not be possible for children with muscular dystrophy to have swimming sessions in these pools when they are not being used? This would benefit both parties in these difficult economic times. It would be good if people could help each other. Would this not be a little bit of the big society?

My husband died in an A&E department after years of complicated medical conditions, including cancer. He developed pneumonia and needed antibiotics through a drip. This was not possible; it was on a Sunday. There is a desperate need for palliative care in the community for those who wish to die at home.

20:26

[Lord Howard of Lympne]

My Lords, it is a pleasure to follow the noble Baroness, Lady Masham, and I join in the congratulations to my noble friend Lord Bridgeman on securing the debate. I declare an interest as chairman of Help the Hospices.

Your Lordships have spoken eloquently and in moving terms of the quite extraordinary work that is done in our hospices. It is true, as my noble friend Lord Bridgeman said, that this is an area of care where we are recognised as providing the best in the world. A number of noble Lords have pointed out that the hospice movement is an outstanding example of the big society. I am pleased to place on record that the Prime Minister has acknowledged that there is no better example of the big society than the hospice movement. I feel immensely privileged to hold the position that I do—although I have held it for only a few weeks—and to be able to contribute in whatever small way I can to this outstanding movement. I described it in the debate of the noble Baroness, Lady Finlay, as the jewel in the crown of our healthcare system, and I believe that to be true.

In the short time available I wish to make three points, although that may prove to be a little ambitious. First, as a number of your Lordships have pointed out, although the debate is concerned with the portion of funding that goes to hospices from the Government—we are asking the Minister for some indication of that today—it is true and will remain true that the greater part of the funding for hospices will come from local and charitable sources. It is therefore at least as important for the future of the hospice movement that everything is done to encourage charitable giving and volunteering. As we have heard—I acknowledge the fact—an enormous amount of the work that is done in hospices is carried out by volunteers.

Secondly, I draw attention to the fact that a number of new providers are entering the field of palliative care. This is a healthy development which may well increase the availability of palliative care and support at the end of life. I hope that the new providers will recognise that local hospices can provide a source of experience, expertise and knowledge for the public, private and voluntary sectors in improving care for people affected by terminal illness.

Lastly, as local councils take on a wider responsibility for health and social care within their communities, it is very important that they should recognise that good-quality palliative care can reduce pressure on expensive acute services and deliver personalised care for people in their own homes. It is essential that the palliative care funding review and the coalition Government’s review of social care funding being led by Andrew Dilnot should work together to develop a comprehensive funding settlement that reflects the nature of the care and support for people affected by terminal illness. I hope that the Minister will be able to respond positively to these points and that the Government will take them on board when they come to implementing the review.

20:30

[Lord Patel]

My Lords, I too am grateful to the noble Viscount, Lord Bridgeman, for calling this debate and I echo his words about children’s hospices. It is on that that I will concentrate my brief remarks.

It is crucial in this debate that we consider palliative care for children as well as adults. There are 20,000 children and young people in the United Kingdom who will die before they reach adulthood. Some of them will die when very young; others will deteriorate slowly over many years. Families caring for these children and young people, often 24 hours a day, seven days a week, can feel under enormous emotional, physical and financial strain. Relationships can suffer, careers may have to be abandoned, siblings who are well can feel left out and normal family activities become almost impossible. Children’s hospices offer a lifeline to these children, young people and their families, helping ordinary people in extraordinary circumstances to cope with the challenges of everyday life. They provide a range of flexible, practical and free support at home or in the hospice to the entire family, often over many years and at any stage of a child’s illness from diagnosis for as long as it is needed.

There are currently 45 children’s hospices in the United Kingdom, 40 of which are in England. They provide flexible comprehensive care at home and in the hospice, help with pain control in children, support for families, end-of-life care and bereavement support. They are all registered charities, receiving very little statutory funding and relying on the generosity of the public. They struggle to get funding from primary care trusts. Only around 9 per cent of their funding comes from PCTs and local authorities. The palliative care funding review is a unique opportunity to put in place long-term funding. Localised GP commissioning will present serious challenges in commissioning children’s palliative care. I hope the Minister will agree that the national commissioning board should be the body responsible for commissioning palliative care for children. The key issue here is adequate funding for children’s hospices, which provide extremely valuable care to children and families and should have statutory funding.

20:33

[The Earl of Selborne]

My Lords, I join others in thanking my noble friend Lord Bridgeman for introducing this debate and giving us the opportunity to talk about the future of hospices and palliative care. Like my noble friend Lord Bridgeman and the noble Baroness, Lady Masham, I make a plea for the cause of palliative care in the community. I declare an interest as a patron of a charity called Hospices At Home TLC, which operates in Hampshire, where I live, West Sussex and Surrey. Developed from the palliative nursing service and funded by the Big Lottery, it provides help for adults with a limited life prognosis and their family and carers.

As my noble friend Lord Bridgeman reminded us, surveys consistently show how many people would prefer to have support at home and to die at home if that is feasible. Of course this requires the relevant level of care in the community to be provided. My noble friend mentioned that the significant figure of £160 million could be saved, but specialist therapies, specialist medical equipment, volunteers working alongside nurses and bereavement counselling are the sort of services which are being provided by charities and the hospice movement.

There are difficulties, some of which arise from the interface with the primary care trusts. Sometimes they are not always aware of their own criteria for qualifying for continuing care in the community. While the gold standards framework aims to improve the organisation and quality of care for everyone in the last years of life, it is often when a patient is placed on the palliative care register that patients and families and carers are not able to understand just what support, and further support as the condition changes, is available within the primary care trust area. I simply make a plea that everyone involved with the primary care trusts not only understands for themselves the criteria for support but makes them accessible in a way that everyone else can understand. We need to move towards a national cover for palliative care services in the community. We are enormously lucky in our area to have just such a cover.

20:36

[Lord Judd]

My Lords, the hospice movement is indeed fortunate to have a champion like the noble Viscount, Lord Bridgeman, with his compassion and detailed knowledge. I declare an interest as president of the West Cumbria Hospice at Home, a pioneer hospice in this kind of care for those who wish to die at home. It is impossible for me to speak too highly of the quality of commitment of its staff, volunteers and trustees. Volunteers provide a compassionate service of a highly professional standard and the sensitive staff are in many ways volunteers, serving well beyond the requirements of their contracts.

Hospices are usually charities with their own supporters from whom they receive the bulk of their funds. This is often an intensely local relationship, with communities feeling real ownership of the organisation. This is well illustrated in west Cumbria, where the local community has taken the hospice to its heart and where there is just such a widespread sense of responsibility for its work. This is well evidenced by the upwards of 1,500 women who each year participate in a midnight six-mile sponsored walk, cheered on even at that late hour by the local community.

Any legislation will have to be tuned to this spirit and recognise that, for example, any pressure to merge could all too easily destroy an ethos which is so essential for success. That is not to say, however, that there should not be encouragement towards collaborative working between neighbouring hospices. There is a risk that some hospice charities might in effect be perceived largely as fundraisers for the NHS. This must be robustly rebutted. Instead hospices should be encouraged to lead in their sphere and should receive absolutely essential financial support by commissioning.

In the NHS White Paper, there is a clear move from focusing on targets to focusing on outcomes and quality. Hospices have always focused in this way. This, of course, requires so-called soft measures where evidence is not always easy to provide. Again, any legislation needs to be considered against a very different background from what is more usual in the NHS. The central role of the GP commissioning consortia envisaged in the White Paper gives hospices a real opportunity to become the preferred provider for these services at the local level. Hospices which are already the main high-quality provider could in many cases, given the necessary support of commissioning, expand the services they provide to become far more comprehensive. This could be by providing more general palliative care services in the local community and by embracing activities not normally currently covered—education, dementia care, care for chronic and end-of-life conditions, as well as the essential and demanding care for the dying.

Finally, I make a plea: we must be wary lest unimaginative bureaucratic reporting requirements, such as detailed statistics and the standards expected in preparing them, at times place a disproportionate burden on the volunteer-dependent charities. This could inadvertently dampen the very spirit which is so essential to a hospice’s success.

20:40

[Lord Patten]

My Lords, I am very happy to follow the noble Lord, Lord Judd, who put his finger with great accuracy on the importance of localism in support for hospice movements, whether in hospitals or hospices in the community—a point also reflected by my noble friend Lord Selborne. That localism underpins much of what my noble friend Lord Bridgeman described in his speech, which was absolutely spot on.

I wish only to address the spiritual aspects of palliative care, whether in home, hospital or hospice. I guess that when in centuries past hospice-like or palliative care was given it was largely the preserve of the religious. Pain relief must have been very difficult in comparison to the spiritual solace that was doubtless always available on tap and in plenty. Today, the reverse may be the case, thanks to the great leaps forward that have been made in pain control and pain management. If it is hard to provide a hard-nosed, cost-benefit analysis of such pain relief, which I think it is, how very much harder it is to do the same for the spiritual solace given to those facing death and their families. But this spiritual dimension is vital.

While I warmly welcome the extra sums that have been found in these hardest of times by the coalition—the £40 million for hospices and the extra money for palliative care for children—as well as the review that is being undertaken, I ask my noble friend Lord Howe whether he will ensure that the needs of the dying who wish to see a representative of the British Humanist Society, an imam, a rabbi or a priest are not forgotten. That very valuable body, the Association of Hospice & Palliative Care Chaplains, does a great deal to spread good practice in the area of palliative care—it must be terribly demanding and emotionally draining work—helping both patients and their families. As more emphasis is put on dying at home, ways to enhance the good work of this network of chaplains and their colleagues in more community-based care must be developed and the spiritual dimension must not be forgotten.

20:42

[Baroness Finlay of Llandaff]

My Lords, in securing this debate, the noble Viscount has exemplified his tireless work for hospices and is to be congratulated. Hospices’ futures depend on stable funding. The service exists to help people to live as well as possible until their natural death and to support their family, including children.

The report of the Palliative Care Funding Review, which was chaired by Tom Hughes-Hallett from Marie Curie, has drawn heavily on the Welsh model. I declare with a certain pride an interest as the chief architect of that model. We realised that every patient with complex end-of-life-care needs, wherever they are and whatever their diagnosis, should have access to specialist palliative care advice and support to underpin general services in primary and secondary care, irrespective of the bed that they are in, be it at home, in hospital or in a nursing home. We realised also that there will always be some who need to be in specialist hospice beds because they have complex needs. However, the ad hoc way in which hospices have grown up means that some areas have good provision while others remain devoid of it.

We wanted fairness of access for patients, so we developed a funding formula. We calculated that there needs to be one hospice bed or a hospice-at-home virtual bed per 15,000 of population. My rough calculation for England suggests that the numbers are pretty good but poorly distributed. We stipulated the minimum number of specialist staff needed for community palliative teams to oversee hospice beds and for different hospital support teams. This indicated the core service that the NHS should fund, irrespective of provider. If charitable funding dried up, there would still be a core service in every area.

We instigated seven-day working by specialist nurses, costing around £10,000 per team—that was all—with 24/7 on-call consultants to advise any healthcare professional across Wales by telephone or even visit if necessary. In hospitals, these nurses, visiting the wards and sometimes going to A&E, have facilitated discharge to home, and patients have not needed to be admitted. They have also set up home care, so that when the patient gets home everybody is expecting them.

Every dying person with complex needs should know that specialist help is available if needed. Our national standard is that every referral must be responded to within 48 hours. Fortunately, almost all are seen on the same day or next day; a distressed dying patient cannot wait. Direct patient and family feedback provides dynamic quality assessment, while service data inform performance monitoring.

Three years on, we are convinced that per-patient payments will be an accounting nightmare. The complexity is too wide-ranging. Patients need a rapid response and true choice over place of care and hospices need funding stability. End-of-life care cannot be left just to voluntary donation; its commissioning must be a core duty of budget holders.

20:45

[Lord Cavendish of Furness]

My Lords, with her formidable experience and knowledge, it is always humbling to follow the noble Baroness, Lady Finlay. I join other noble Lords in thanking most warmly the noble Viscount, Lord Bridgeman, for introducing this debate so ably.

I have to declare an interest: some 20 years ago, I helped to found St Mary’s Hospice in Ulverston in Cumbria. It is at the other end of Cumbria from the noble Lord, Lord Judd; Cumbria is enormous. I retain a connection, although I retired as chairman last year.

I should like to make two points. As I understand it, the independent report on end-of-life care by Thomas Hughes-Hallett has made an interim recommendation to the Government to the effect that hospice-at-home services should be the chief beneficiaries of whatever money may be available in future. I do not quarrel with that, nor do I want to second-guess the final report. However, I register two caveats. First, a significant minority of terminally ill patients want to die in a hospice or at least do not want to die at home. The other caveat is that a hospice building has uses beyond that of being where people are cared for as they approach death. It is a point of contact for members of the local community and provides a venue for day care, which is very important, bereavement counselling and much else besides. Perhaps most important of all, it has become the hub of expertise, especially where a hospice such as ours develops a speciality. In my case, because of the high incidence of mesothelioma in Barrow-in-Furness, which is the tragic legacy of asbestos in the shipbuilding industry, St Mary’s has become something of an international leader in this field. Hospices innovate, as does palliative care in general. It would be dangerous to ignore the strength that an institution derives from having a physical core, albeit modest, which provides the springboard for training and innovation.

The second point is that I believe that the hospice movement has stumbled on a formula that could be far more widely applied. With very little modification, it could do very much more in the fields of heart disease and end-stage respiratory illness. It could relieve much fear and distress among patients suffering from these complaints. It would also remove significant financial burdens from the NHS. The non-cancer element of hospice care averages, I think, only 10 per cent; at St Mary’s we have a slightly larger percentage and my contention is that nationally it should be significantly higher still.

The ratio of funding between the state and our own fundraising efforts results in our having to find rather more than 70 per cent of what we spend. The reason why we were able throughout my time to raise such prodigious sums in a not very well-off area was that we successfully persuaded local people that the hospice belonged to them. In effect, the state meets the clinical costs—about 30 per cent—and we find the rest. This means that our care is essentially needs-led. I agree with my noble friend Lord Patten that, in this rabidly secular age, spiritual support has an important place and is much needed. This model, with its built-in synergy between public and private providers, can and should in my view form the basis on which new and enduring partnerships can build. It is indeed, as has been said, the big society at its best.

20:49

[The Lord Bishop of Guildford]

My Lords, the hospice movement and the burgeoning of palliative care and research are indeed developments in which we lead the world, as the noble Viscount, Lord Bridgeman, said.

I declare an interest as a member of the council of King’s College London. This year the Princess Royal opened the Cicely Saunders Institute of Palliative Care at King’s College Hospital. This is the culmination of 15 years’ work at King’s and was funded through the Cicely Saunders International charity, the Wolfson Foundation and other charities. It is the first palliative care unit in the world, as far as I am aware, where patient care, teaching and research are all conducted under one roof.

As a Bishop I also speak—and other Bishops could say the same—of hospices in my diocese: Woking, Sam Beare, the Princess Alice in Esher, the Phyllis Tuckwell in Farnham and the CHASE Children’s Hospice in Guildford. Hospices, as noble Lords have already said tonight, are wonderful places. They are places of peace and joy, more profound than trivial bonhomie. I think of a little girl, Tamsin, singing “Away in a Manger” two Christmases ago, only a few days before she died.

I do not need to rehearse the Christian inspiration for the hospice movement and the concomitant development of palliative care through pioneers such as Dame Cicely. It may be worth noting, however, that one recent development in our excellent hospices is the significant increase in palliative care offered in the home. The noble Baroness, Lady Masham, and the noble Lord, Lord Howard, alluded to this. There are now more out-patients being cared for through our hospices than before. A good death and quality of life well before death, with loving care and the alleviation of pain, can be and are being provided extensively within the homes of patients. It should be, wherever possible, extended, although I accept the caveat of the noble Lord, Lord Cavendish, as to the appropriateness for some who prefer to be in the hospice itself.

The availability of palliative care is, as we all know, subject to the lottery of the postcode. I therefore warmly welcome the interim report and look forward to the final report next year on how dedicated palliative care can be funded so as to be available to all. The interim report, which we look forward to and which was trailed by the noble Viscount, is looking at a national funding system locally delivered.

The content of palliative care is defined in holistic terms, including psychological, social and, indeed, spiritual care—I am grateful for the contribution of the noble Lord, Lord Patten, on that. The signs from the interim report are therefore good and far-reaching. The question for the future after the definitive report in the summer will be implementation. As TS Eliot put it:

“Life you may evade, but Death you shall not”.

There can be a good death and that should be available to all.

20:53

[Baroness Thornton]

My Lords, I congratulate the noble Viscount, Lord Bridgeman, on securing this short but important debate, which has had many very pertinent contributions. The goal of palliative care is to prevent and relieve suffering and improve quality of life for people with serious and complex illnesses. End-of-life care affects all of us; it is everybody’s business and, as such, must be a central focus of any health, social care and housing reform agenda.

Much of the recent progress in end-of-life care was enabled by its inclusion as one of only eight high-level priorities in the NHS Next Stage Review, which the previous Government brought forward. Indeed, we made end-of-life care a priority; we made a commitment to it and, significantly, we increased funding to hospices. The key challenge facing the Government now is to ensure that end-of-life care continues to be one of the top few high-level organisational priorities at each stage of the forthcoming reforms. The proposals in the White Paper published this summer did not reflect the importance of end-of-life care sufficiently to guard against it being subsumed by other higher profile priorities. That is not just my opinion; it is also the opinion of the Palliative Care Association.

I have glanced at the results of the consultation published today and have yet to find the words “end-of-life strategy”. It may be in the operation strategy document, which is my weekend reading. I echo my noble friend Lord Faulkner in his concern about how the new GP commissioning will deliver palliative care. I suspect that many organisations that have campaigned for end-of-life care so successfully in recent years will be concerned about what comes next. Diluting recognition of end-of-life care as a discrete, high-level priority risks undermining the progress made, and I suggest devalues end-of-life care as a government priority. I should be grateful for the Minister’s comments on this and his reassurance. Surely, if the Government intend to drive cultural change in the NHS, as they say they do, it is essential that they reflect the whole journey of a person’s care throughout their life to their death and into bereavement care for their family and friends. The Minister needs to address some serious worries and concerns raised during this debate.

20:56

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)]

My Lords, I begin by thanking my noble friend for tabling this Question for debate and introducing the subject so ably. I very much recognise the considerable knowledge that he brings to this subject, not least as a result of his past chairmanship of St John’s Hospice in London.

Thanks to the dedicated work of hospices, many people do die well: where they choose, with the people they love, and with all the medical, psychological and spiritual care they need. The Government are committed to supporting the work of hospices. We have confirmed the £40 million hospice capital grant for 2010-11, allocated under the end-of-life care strategy, supporting 123 projects in 116 hospices. More generally, we are determined that care should be compassionate and appropriate and that it should support personal choice. We will do that by putting patients, their families and carers at the heart of everything we do.

The end-of-life care strategy aims to improve care for all adults approaching the end of their lives, whatever their diagnosis and wherever they are, including enabling more people to be cared for and to die at home if they so wish. However, while many people receive excellent care, others do not. There are still variations in people’s experience by region, by age and, as my noble friend Lord Cavendish, pointed out, by disease, with greater emphasis given to people with certain conditions, particularly cancer. We can and must do better. We are taking forward a number of initiatives to improve end-of-life care services for everyone.

The issue of funding was introduced by many noble Lords, not least the noble Lord, Lord Faulkner of Worcester. I agree with much of what he said. End-of-life care needs a long-term system of sustainable funding. We committed, in the coalition agreement, to a per-patient funding model for palliative care. I listened with care to what the noble Baroness, Lady Finlay, said in that connection and I am grateful to her for the points that she made. My right honourable friend the Secretary of State for Health has asked Tom Hughes-Hallett, chief executive of Marie Curie Cancer Care, to chair an independent review of palliative care funding. I am sure that he will wish to take account of the experience and expertise of the noble Baroness in this area.

The review, covering services for both adults and children, is looking at options to make sure that the funding of hospices and other palliative care providers is fair. It will make recommendations for a funding system that will cover care provided by the NHS, a hospice or any appropriate provider, which encourages more community-based care so people can remain in their own homes, if they wish. It will be fair and transparent to all organisations involved in end-of-life care. The review is making good progress and I know that many in the hospice movement including, as my noble friend Lord Howard will be pleased to know, Help the Hospices, have provided evidence to inform its work.

The review’s interim report, published on 3 December, sets out a definition of dedicated palliative care and initial thoughts on a national funding system, stressing the importance of 24/7 community services. I look forward to receiving the final report and its detailed recommendations for funding in the summer. Of course, the funding review comes with a caveat that it has to be affordable within the constraints of the current financial climate.

Beyond sustainable funding, we need to consider how we will deliver end-of-life services. The NHS operating framework, published today, emphasises the importance of implementing the end of life care strategy and of developing round-the-clock, community-based services. The best services already know that good end-of-life care is not only more effective, but can be less expensive than poor care. A recent National Audit Office report found that in a typical PCT, around 40 per cent of the people who died in hospital had no medical need to be there. They could have been cared for at home or in their care home if the community-based support had been in place to support them and their family or carers.

We want services that enable people to have more control over the care they receive when they are dying. As one way of achieving this, our intention is for people to be able to add their end-of-life care plans to their own summary care record. We need to develop the services that allow people to die in a place and in a manner of their choosing. I recognise that this is not easy. Nor can it be done overnight. There is a great deal of work to do. In 2013 therefore, we shall review our progress and see how close we are to giving people the control that they clearly wish for.

We need more imagination, more radicalism, more courage in commissioning. We need to shift the landscape of end-of-life care in favour of the service user. The best commissioners are already challenging old conventions, finding new ways of designing services, and new ways of bringing hospices and other community organisations together to meet patients’ needs. Soon, new GP consortia will commission services. GP-led commissioning has clear advantages over the current model for end-of-life care. GPs have a better understanding of patient needs and better connections within the local community. They know what is available locally to support patients at the end of their lives. I firmly believe GP consortia will be advocates of hospices, not their enemy. But hospices themselves should be proactive. They should talk with their local GPs. They should also talk with their local authorities, which will play an increasingly important role in co-ordinating care, as we move toward joint-commissioning and planning through health and well-being boards.

My noble friend Lord Bridgeman dwelt with some emphasis on funding. The Department of Health is providing £286 million of additional funding to support implementation of the end-of-life care strategy over the two years 2009-11. A huge amount of money is being spent on end-of-life and palliative care. We know that it is often not used as it should be. That is why the palliative care funding review is looking at how we can better deploy the resources that we currently provide.

My noble friend Lord Bridgeman and others were right to highlight the particular issues surrounding palliative care for children. The Coalition: Our Programme for Government, states that the Government will provide,

“£10 million a year beyond 2011 from within the budget of the Department of Health to support children’s hospices in their vital work”.

As I have already mentioned, the children’s palliative care services are being specifically considered by the palliative care funding review.

My noble friend Lord Bridgeman also asked me about 24/7 community services. The end-of-life care strategy encourages commissioners and providers to develop 24/7 community-based services for medical, nursing and personal care which people need to enable this to happen. The funding review has already highlighted the importance of treating 24/7 community services as a priority.

The noble Lord, Lord Faulkner, asked about future funding. I have already referred to our intention to introduce a per-patient funding system. More generally, the strategy makes clear the responsibilities of the NHS to ensure adequate support for hospices, including through stronger commissioning and adhering to the principles of the compact code of good practice. That should mean more funding stability, including longer-term contracts, for hospices. My noble friend Lord Howard referred, quite rightly, to the cost-effectiveness of palliative care. The new health and well-being boards will follow on from the current commissioning arrangements that are already directed at end-of-life care because improving quality and improving productivity are, effectively, the same things.

The noble Lord, Lord Patel, asked me about commissioning in the future and the noble Baroness, Lady Thornton, questioned the Government’s commitment in this area. The NHS commissioning board will determine how best to deliver high-quality services, including end-of-life care, by working with GP commissioning consortia and making use of the various tools and levers it will have available. The board will commission NICE to develop quality standards to define the quality of care necessary to deliver the desired outcomes and use those standards to produce a commissioning outcomes framework. That framework will then be used to hold GP consortia to account. NICE has already begun the process to develop an end-of-life quality standard and we look forward to seeing the fruits of that work.

My noble friend Lord Bridgeman asked about the extent to which choice will be embedded in the system. We recognise how important it is to give people choice over the care that they get when they are dying and the place in which they receive that care but, as I have mentioned, we also recognise that it is not an easy task and cannot be done overnight. We need to do a lot of work and, as I have mentioned, we will be reviewing progress in 2013 so as to be sure of what we are capable of committing ourselves to on the issue of choice.

My noble friends Lord Patten and Lord Cavendish and the right reverend Prelate stressed the importance of spiritual care. The end-of-life strategy recognised that each person has spiritual, religious or emotional needs and that spiritual care is an important, integral part of the care given to people at the end of their life and to their carers and families. The department has produced a set of quality markers for end-of-life care and in the strategy’s second annual report, published in August, we said that we would consult on the effectiveness of the quality markers and revise them. Those will include spiritual care and consultation will begin in the new year.

My noble friend Lord Bridgeman referred to the importance of training and education. The department has taken forward a number of initiatives to develop the workforce, including: the development of core competences and principles; publishing an e-learning package on end-of-life care, which is free to access for health and social care staff, and supporting communication skills so there is a lot going on in this area.

To conclude, my noble friend Lord Cavendish referred to hospices as places where patients receive the best kind of care and I would not wish to disagree with him. Having said that, surveys consistently show that up to 75 per cent of people would prefer to die at home but at present only about 20 per cent do so, with a further 17 per cent dying in a care home. It is about choice; however, I take note of the powerful points that he made. Lest any noble Lord should think otherwise, the Government remain committed to delivering good- quality end-of-life and palliative care services and we believe that the action we are taking will improve the quality and range of options available to those in England at the end of their lives, including the many who receive such excellent care from hospices.

Parliamentary Voting System and Constituencies Bill

Wednesday 15th December 2010 Lords Chamber

Committee (5th Day) (Continued)

21:10

Clause 7 : Interpretation

Debate on whether Clause 7, as amended, should stand part of the Bill.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, this clause is an interpretation clause, although it provoked some interesting debates on the amendments on which the House voted. The purpose of the clause is to provide definitions of certain terms used in the Bill, providing clarity as to the meaning of these words in the context of the Bill. The clause does not have any substantive effect on its own; that is contained in the clauses and schedules which use the words and terms listed in this clause. On that basis, I hope that the House will support me.

Clause 7, as amended, agreed.

Amendment 41 not moved.

Clause 8 : Commencement or repeal of amending provisions

Amendment 42 not moved.

Amendment 43

Moved by

[Baroness Hayter of Kentish Town]

43: Clause 8, page 6, line 4, at end insert—
“( ) over 25% of the electorate have voted in the referendum,”

[Baroness Hayter of Kentish Town]

My Lords, I start by saying that I should like to de-group Amendment 44. I apologise to those Members of the Committee who did not know that; I sent a notification earlier, but not by the deadline. I understand that the Government have been pre-warned. Clearly, Amendment 44 is a different issue from the others in this clause and in that way it is better for the Committee.

Amendment 43 is a very simple one to add to the noble Lord’s simple Bill. It requires that, for the automatic outcome of the May referendum to be triggered, there would have to be a turnout in the UK of at least 25 per cent. The reasons for this are so obvious that they hardly need stating. The idea of introducing a major constitutional change on a vote of perhaps 10 per cent or 20 per cent of the electorate will seem to make no sense to anyone, be they for or against the AV proposal. Furthermore, on a low turnout, the numerical winning number could be alarmingly small. Should voters be fairly equally balanced between yeses and noes, the all important endorsement for the outcome by popular opinion would be missing.

The intention of this amendment is, in a way, twofold. It partially asks the question whether we want to change. In other words: can people be bothered? Are they interested enough in the matter to turn up and vote? Or, if they are already voting for the Scottish Parliament, the Welsh Assembly, or for their local councillors, are they bothered enough to complete the second ballot on this matter of AV? This is really important, given the understandable desire of the coalition, with which I have some sympathy, albeit a sympathy perhaps not shared by many of my noble friends, to capitalise on the voting date already in many people’s diaries and offer this second choice on the same date. But this makes the threshold even more important, which is the second intention of the amendment. Should there be, for example, a 35 per cent turnout for the local elections, but then only a 15 or 20 per cent turnout for the referendum, what on earth would that say about the saliency of this choice? If perhaps a third of those who actually enter the polling station voted for their Scottish Parliament Member, their councillor or their Assembly member, and then did not take the extra 20 seconds to vote for or against AV, what would that say about the interest in this issue that engrosses so many of us in your Lordships’ House and in this Committee today? I do not anticipate any such lack of participation in that referendum.

I certainly do not anticipate any such lack of participation on the part of those who already go to the polling station. I may have some concerns about London, but that is a different matter which is not before us now. My 25 per cent figure is modest.

[Lord Campbell-Savours]

I am sorry to trouble my noble friend, but that is an incredibly low figure. Perhaps she will correct me, but if a majority of people on a 25 per cent poll voted, it would mean that only one in eight persons had actually voted for a change in the electoral system. Is that what my noble friend’s amendment means?

[Baroness Hayter of Kentish Town]

My noble friend is right: it is extremely modest. As he knows, I am a very modest person, asking for very modest amendments to the Minister’s very simple Bill. Other amendments have been tabled in the names of other noble Lords on both this side of the House and on the Cross Benches which are perhaps a little less modest than mine. The amendment is offered in the same spirit of generosity as when I did not divide the House on the issue of voting at the age of 16 and 17. I did not want to embarrass part of the coalition. It is tabled as a modest amendment to make it all the easier for the Government to accept it.

[Lord Campbell-Savours]

Does my noble friend recognise that, in the event that one in eight people vote to approve the question asked in the referendum, it would be extremely difficult for those of us in favour of electoral reform to justify a change in the electoral system ourselves? We would be placed in an utterly impossible position with such a low turnout and small number of votes cast in favour of the question.

[Baroness Hayter of Kentish Town]

I accept that the amendment is exceptionally modest. My fear is that, without even this as a backstop, we could risk having an even lower turnout and then be faced with what we do at that stage. Because this is an automatic trigger, it is not a referendum to advise the Government or Parliament about what they should do, but would automatically lead to that change. It is essential for there to be a threshold. Otherwise, we could be facing a low turnout and having to decide what to do about it. I am someone well used to dealing with risk management.

[Lord Tyler]

Does the noble Baroness recognise that the problem with thresholds for turnout is that not voting is turned into a no vote? Has she had the opportunity of examining carefully the persuasive argument of Mr Christopher Bryant, to whom reference was made earlier at some length, on 2 November, when he not only argued conclusively on behalf of the Labour Party against thresholds of this sort but was also most effective in securing a massive vote against them: 549 against 31. Has the noble Baroness had the opportunity of examining the arguments of Mr Christopher Bryant and, indeed, those of her colleagues who all went into the Lobby to vote against such thresholds?

[Lord McAvoy]

Before my noble friend answers the noble Lord, Lord Tyler, perhaps she could consider, in doing so, asking him about the advice offered by Mr Nick Clegg that AV was a “miserable little compromise”.

[Baroness Hayter of Kentish Town]

I take a lot of responsibility for Chris Bryant. I have known him a long time. I gave him his first job in the Labour Party. That started a beautiful career on his part; he somewhat overtook me somewhere along the line.

I have indeed remonstrated with the said Member of the other place on this matter, but I think—in fact, I am fairly sure—that I have persuaded him that it is right for us to put this modest little measure to this House. There are two points here. First, if we can never put anything that was not put in the other House, what is the purpose of this House? Secondly, the longer we look at the issues of the acceptability of that referendum, whether one is in favour of AV or against it, the more important it seems to all of us that the result, whatever it is, should be endorsed wholeheartedly and that even those who have lost the argument feel that there was a good turnout and it was a good decision. That is important.

The answer is not that we should not have a threshold. It may indeed be a question of my being too modest in my proposal—it is modest—but I am confident that the acceptance of that principle is something that the Committee should agree to and should be written into the Bill. I find it worrying that otherwise we will have a Bill that makes no allowance for a very small turnout. We might then be faced with the question of how we would deal with that.

Being versed in risk management, which is how I spend most of the rest of my life—that is how we manage things in organisations—I know that one tries not to arrive at a situation without having thought about it before, assessed the risk and mitigated it to the extent that it is possible so that you do not have to scrabble around at the last minute, dealing with results that might have been foreseen.

Actually, I am confident that we will get a 25 per cent turnout, but I would much prefer that the amendment was part and parcel of the Bill. It would not necessarily negate the results of that referendum; it would bring them back to the two Houses of Parliament to say, “How do we now deal with this? Do we think that, despite the threshold being small, it was such an overriding result one way or another that we can live with it? Or maybe a slightly different question about a more proportional system than this, which some Members would like, would be better. Or do we do as the Irish did—put it to the people again until they vote the way we want?”. It gives Parliament and the Government the ability to think how to respond to a situation should it be too low a turnout.

I believe strongly that big constitutional changes should not be made without the will of the people, and the will of the people is as much about turning out to vote and expressing that as it is about the way that they cast their vote. I beg to move.

[Lord Williamson of Horton]

My Lords, noble Lords cannot imagine how pleased I am to see the noble Baroness, Lady Hayter of Kentish Town, moving this amendment. That is so for two reasons: first, because I am interested in the amendment and I support it; and, secondly, because I have sat through almost five days of discussion in the Committee and have heard a large number of extremely important interventions. Some of them did not interest me very much, I have to say, but I have been here and heard them all. I fully accept noble Lords’ right to raise points, but they have done so a large number of times.

Now we come to an amendment that I am interested in because I share the view that it is reasonable, in a situation where we continually tell ourselves that we are dealing with a constitutional issue, that we should have some threshold, as is the case in a good number of democracies in the world. It is true that there are some disadvantages. It is claimed that it could confuse the electorate, though I do not accept that argument myself. I think that the electorate will understand perfectly clearly that they were voting on a certain issue and that they had given their opinion only above a specific threshold. There is also the possibility that quite a lot of people who abstain would consider that they would have given a no vote. However, once again, I do not think that we should attribute to the electorate ideas that they might not have. They might feel quite confident that they will cast their vote and that it is perfectly reasonable that it should be laid down in the procedure that a reasonable percentage of the electorate should vote on an important issue.

Therefore, in principle, it is a good idea to have a threshold. We could have an argument about whether it should be 25 per cent—we have two more amendments here which have a different percentage—but I am very keen that the issue should be raised, as it has been by the noble Baroness. It would be a serious dereliction of duty if we went into a constitutional amendment and had not properly discussed whether or not there should be a threshold. It is an important point and we know that in a good number of other countries there is a threshold in constitutional issue referendums or votes, either in the procedure for initiating a referendum or in the threshold required to validate the vote, which is what we are talking about in this case. This is a subject that ought to be debated in this House. I support the procedure. I accept that 25 per cent is pretty low but we have to launch the debate and see what views are taken in relation to a threshold in the constitutional referendum.

[Lord Lamont of Lerwick]

My Lords, I raised the question of thresholds at Second Reading and the noble Lord, Lord McNally, replied by saying, “Bring it on! Put it down and we will vote it down”, so he can hardly be surprised that the amendment has arrived. I hope that he will be a bit more flexible than he indicated on that occasion. The amendment that the noble Baroness, Lady Hayter, has put forward is—as has already been said—an extremely modest one. There are other amendments, with successively higher thresholds, which the House might or might not wish to examine and divide on. The principle of some sort of threshold is extremely strong.

There are two sorts of thresholds. There are thresholds that relate to the outcome of the referendum that demand that that there should be a minimum percentage of those voting yes as a hurdle. That is an outcome referendum as in the 1979 referendum on Scottish devolution. Then there are quite different thresholds—like all the amendments tonight—that are purely based on turnouts. Looking at other countries is very interesting. There, the logic of the argument is that constitutional change should occur only when there is a clearly expressed and significant majority for it.

In the United States, for example, in order to change the constitution, a two-thirds majority of both houses of Congress is required. Those changes then have to be ratified by three-quarters of the state legislatures. In Germany two-thirds of the members of the Bundestag and the Bundesrat have to vote for constitutional changes. In New Zealand and Austria it has to be a two-thirds majority of votes cast, in Norway two-thirds of members of the Storting, and in Belgium two-thirds of the votes in both houses of parliament. In Denmark there is a 40 per cent threshold for constitutional changes, and in Italy a 50 per cent threshold. I believe there are also thresholds in Spain and Switzerland. The principle is very clearly accepted in many countries and the logic of it is very powerful: that constitutional change can be extremely important and has to be endorsed by the electorate by a significant majority indicating that that is the will of the people.

21:30

It is interesting, I note, that even in the Liberal Democrats’ constitution there must be a qualified majority for certain matters. I think I am right in saying—I know I will be contradicted immediately if I am wrong—that they required a two-thirds majority to enter the coalition. I know they were unanimous; that is what was expressed in the other House and not contradicted by any member of the Liberal Democrat party. The noble Lord, Lord Tyler, will no doubt elucidate this for us.

The principle is clear and the logic is powerful. I notice that Michael Pinto-Duschinsky, the well known academic on electoral systems, who was at Oxford and Brunel University, gave evidence to the Constitution Committee in which he said that either a 40 per cent outcome threshold or a 60 per cent turnout threshold would be eminently reasonable. Whatever Members think about that, it would be self-evidently ridiculous if we had no threshold, there was a very low turnout—let us say 15 per cent—and we just proceeded as though that were okay.

It is interesting that when we had the referendum on the north-east assembly, which was rejected, there was no requirement in that legislation for a threshold. However, such was the nervousness that this created among Ministers, that Nick Raynsford, the Minister at the time, was reported as saying that if there was a very low turnout the Government might not go ahead. They recognised the logic of the argument then. Ministers say that they are confident there will be a good turnout so they admit that that would be a good thing. If they are confident that there will be a good turnout, why do we not have a threshold written into the Bill, just to underwrite it?

Some of the arguments that have been put forward against a threshold have been rather weak. As the noble Baroness, Lady Hayter, said, it is not really an argument for the House of Lords to say, “The other place doesn’t agree with us. We are not going to do it because the other place voted one way on this matter”. We are entitled to vote on this. It is one of the functions of the second Chamber to look particularly closely at constitutional issues. Mr Harper, at one point when replying to the debate in the House of Commons, said that the Government did not want a threshold because they wanted to recognise the will of the people. However, if the will of the people is expressed by 10 or 15 per cent, that hardly seems to justify fundamental change.

Then we have the argument that we do not have thresholds for MPs. That is an interesting argument, to which I make two points in reply. First, MPs have to put themselves up for re-election. Once you have constitutional change, it is extremely difficult to reverse. Secondly, are we not here discussing a voting system the argument for which is that it will get a lot of MPs elected with majorities of 50 per cent? If that is the logic for electing MPs in the new electoral system, why should we not have a similar majority for a referendum on that system?

Then there is the argument that a turnout threshold would encourage people to stay away, and that people who stayed away were effectively voting no by not participating. You could equally say that the turnout threshold encourages people to vote. There is as much logic that way as there is the other way. I do not think there is reason on one side of the argument rather than the other. It is interesting to look at the referendums that we had in Scotland. In 1979, when the referendum had an outcome threshold, the turnout was 63 per cent, despite the threshold. When there was no threshold, the turnout fell to 60 per cent, so I do not follow the argument that a threshold will deter people from voting.

I also believe that a threshold related to turnout is consistent with the coalition agreement. I am sensitive to this point, which I raised with the noble Lord, Lord McNally, as he will recall, at Second Reading. I understand that it was acknowledged in another place in the debate on a similar amendment, and at Second Reading, that it is consistent with the coalition agreement, which in effect called for there to be no outcome threshold because there should still be a simple majority. Well, it would still be a simple majority, one way or the other, even with a turnout threshold.

It seems to me that there is a principle of having a threshold related to turnout. It is sometimes said that we have never had a turnout threshold in this country. I found when I read an ancient Hansard that in some local referendums on particularly rarefied issues such as local licensing or religious instruction in Scotland, there have sometimes been turnout thresholds. The idea is not completely foreign and is widely accepted in many parts of the world.

The amendment is extremely modest. Other amendments on this issue will be debated. Regardless of which one catches the attention of the Committee, the principle of a threshold of some kind, at some level, is pretty irresistible. I hope that the Minister will be a little flexible on this, because it would be profoundly wrong and would lead to great disillusionment if, on a very low turnout, there is a result that changed the voting system. There would be certain reaction against that and it would lead to considerable bitterness. I do not think that the result would be accepted at all. It is in everyone’s interest that one of these amendments should be very carefully considered by the Government.

[Lord Elystan-Morgan]

I am not sure whether it is to the convenience of the Committee, but I rise to speak to Amendments 44A and 45A. They have been degrouped, but I do not think that that will make any practical difference to tonight’s discussions. I have listened with great interest to the most eloquent contributions of the noble Baroness, Lady Hayter, and the noble Lords, Lord Lamont and Lord Williamson, and I find myself very much in sympathy with everything that they have said.

However, I hope that when the noble Lord, Lord McNally, eventually determines this matter, he will again manage to achieve—as I am sure he had at one time—an open mind before coming to a conclusion. He is a person for whom I have immense regard and I believe that he is a great enough man to be prepared to reconsider the matter in the light of solid evidence.

The case can be put in six words: it is an insurance against disaster. When you insure something, you insure it not because you think that there is the certainty, nor indeed the likelihood, of destruction or damage. Nor do you insure it because you think that there is a fairly minor percentage possibility. However, because there exists a possibility, the prudent person insures. It is on that basis that I ask the Minister to consider this argument, which I put forward with great sincerity, believing as I do that it would greatly improve the Bill.

I accept that we are dealing with a situation of the utmost constitutional significance. This is only the second time that a referendum on a whole-UK basis has been held. The first and only one until now was in 1975 in respect of the United Kingdom’s membership of the Common Market. We are having a referendum for the second time in 35 years. I have no doubt that Mr Clegg, the Deputy Prime Minister, was quite correct in saying that this is the most significant constitutional change since the Great Reform Act of 1832. Putting those matters together, therefore, I have not the slightest doubt that the Government were absolutely right to make this issue the subject of a referendum. One can hardly think of a matter that is more pertinent and more epoch-making.

I agree that referenda, in the main, are a diversion from the ordinary processes of Parliament. It is received wisdom that, in the Glorious Revolution of 1689 and the Bill of Rights, there was a huge transfer of power from monarchy to the people. That is not quite true. The transfer of power was from monarchy to Parliament. Parliament has exercised that sovereign authority as a trustee for the people ever since. In one sense, it would be a craven and irresponsible act on the part of Parliament to seek to delegate that authority back to the people—subject, of course, to the decision of the people at election time. However, there are exceptions and this, I think, is clearly one of them. It is delegating to the people that direct democratic authority that at one time was exercised, as the Committee will remember, in Greek city states and in the Roman republic thereafter—something utterly exceptional as far as our own system is concerned.

Nevertheless, that system is fraught with peril. It is possible, although very unlikely, that one could have a result brought about by only a minuscule proportion of the electorate. That is what we should insure against. We should be cognisant of the possible dangers. If it were the consequence of Parliament’s position having so fallen into desuetude that general apathy and contempt kept people away from the voting booth, there would be very little that we could do about it. However, it could stem from wholly accidental sources. It is not impossible to have rainfall of a number of inches over a period of a few hours, as we have seen in the past two or three years, bringing about a wholly disastrous situation due to a vicissitude of nature. Another vicissitude of nature could well be foot and mouth disease, paralysing all mobility in the rural areas. We have seen that happen twice in the past 43 years. It could happen again. Let us hope that it never will happen again, but it could. Nobody can stand up in this House and say, “You are talking nonsense. These are possibilities that simply cannot happen”. I would say that they are very unlikely to happen, and I hope and pray that they never will happen, but I think that we would be extremely foolish not to insure against them.

[Baroness Liddell of Coatdyke]

I am very interested in the point that the noble Lord is making. He may recall that the 1979 referendum on the Scotland and Wales Acts was held on 1 March, St David’s Day. I well remember that we got up in the morning on 1 March and snow was falling. I remember the late Donald Dewar saying that if he had a dog he would kick it. Thankfully it was not my dog, and it was not foot and mouth disease or something as dramatic as that. However, there was an awareness that the weather conditions were going to be quite negative on that day.

[Lord Elystan-Morgan]

I hear what the noble Baroness says and I am sure that she is correct. I had the unfortunate experience of being chairman of the yes campaign in Wales and we lost heavily. However, there is no defence that I can raise in respect of weather, unfortunately.

Coming back to the question, I think that a threshold is certainly called for. The point has been well made by the noble Lord, Lord Lamont, that nearly all other democracies, particularly those that have a written constitution, have a provision for a threshold, so we would not be doing something out of line with democratic process and experience in many other countries. As noble Lords know, there are two types of threshold. One is the threshold relating to the minimum number in the turnout; the other threshold is the majority threshold. In 1978, there was the Cunningham amendment. The result of that amendment was that, for the devolution referendums in Scotland and Wales to be carried, there had to be at least 40 per cent in favour of the proposition.

The very distinguished constitutional commentator, Professor Vernon Bogdanor, has analysed that situation. You could achieve a 40 per cent majority in Scotland on an 80 per cent turnout if 50 per cent voted in favour. If the turnout went down to 70 per cent, you could still achieve it on 57 per cent of the vote. If it went down to 60 per cent, it would be 67 per cent—of course, a very high level unlikely to be achieved. Whether wrecking the referendum was the purpose or the desire, I know not. It may not have been, but that was certainly the result in Scotland. I make that point because many people have come up to me in the past few days saying, “I’m not really for your proposition. This 40 per cent business was gone into in the Cunningham amendment many years ago”. However, this is quite different, as it relates simply to the question of turnout.

21:45

The next question, then, is this: is 40 per cent right or about right? I doubt very much whether anyone could prove beyond reasonable doubt that 40 per cent was right or that 41 per cent or 39 per cent was wrong. I am completely flexible with regard to that. If 40 per cent is somewhere in the parish, I ask the Minister to look at it in that light.

My argument in favour of 40 per cent is that, first, so far as I know, in no general election in the past 100 years has the vote come anywhere near as low as 40 per cent. Secondly, the 1975 vote was well over 50 per cent. Thirdly, when the independent referendum commission of 2006, chaired by Sir Patrick Nairne, considered this matter, it talked about thresholds of 60, 65 and 70 per cent as being entirely reasonable. Therefore, in the circumstances, and with the greatest respect to the noble Baroness, who put her case with great persuasion and lucidity, I believe that 40 per cent is not very far from reality in this case. As I said, if you take the view that disasters cannot happen, you can well argue that this is unnecessary. However, if you accept the history of the real world—the world in which disasters do happen—it seems to be prudent and proper to insure against that eventuality.

So far as I am concerned, there is no desire whatever to delay matters or, indeed, to wreck this part of the Bill. The Bill has to return to the House of Commons in any event because of amendments that have already been passed and I do not think that it would be delayed further by this matter. So far as concerns wrecking the Bill, I am sure that the noble Lord will accept my amendment in the spirit in which it is tendered.

Speaking, if I may, as a Welsh lawyer, I put forward this argument from the point of view of an abundance of caution. I see that there are two former Chancellors of the Exchequer here, who also represent an abundance of caution. I understand that before long we shall hear from the noble Lord, Lord Lawson, who will take much the same line. The case that I put forward is founded on the fear of the remote possibility of a referendum being a disaster. In the circumstances, it is a small premium to pay by way of insurance.

[The Deputy Chairman of Committees (Lord Geddes)]

My Lords, it may assist the Committee if I intervene at this point. I acknowledge that of course it is absolutely the prerogative of any noble Lord to degroup any amendment from an existing group. As I heard the noble Baroness, Lady Hayter, her wish was to degroup only Amendment 44. Therefore, to the best of my knowledge, Amendments 44A, 44B and 45A are still grouped with Amendment 43. I hope that that is of assistance to the Committee.

[Lord Campbell-Savours]

I want to intervene only briefly, because I want to speak later on the whole question of thresholds in the Bill. I just want to clarify the position as set out by the noble Lord, Lord Tyler. I fear that he misrepresented exactly what happened in the Commons. I have the Hansard here. My honourable friend Chris Bryant said:

“My hon. Friend is absolutely right that there is no fixed determined policy that we are completely and utterly in all cases implacably opposed to thresholds … I was actually trying not to suggest a threshold … I am not convinced by the arguments that are being advanced in favour of thresholds. I personally will be voting yes in the referendum. I do not believe that there should be a referendum, but there is a legitimate argument that others might want to consider about whether the fact that we are combining the polls will produce differential turnout in different parts of the country that might make a necessity of a threshold”.—[Official Report, Commons, 2/11/10; cols. 247-8.]

In other words, he took that position on thresholds because he was concerned about differential turnouts. If we did not have the problem of the referendum being on the same day as different elections within the United Kingdom, his position on thresholds would have been completely different. It was most unfair of the noble Lord, Lord Tyler, to present his case in the way that he did.

[Lord Tyler]

My Lords, we can all cite from what was an extensive speech, but the judgment concerned stated:

“I do not agree with the hon. Gentleman about thresholds in referendums because, broadly, they are not a good idea”.—[Official Report, Commons, 2/11/10; col. 246.]

That is absolutely clear. The clarity of that statement is endorsed by the fact that not only were 549 votes cast against the amendment against 31 for, but the vast majority of the honourable gentleman’s colleagues voted that way. I think that he was very persuasive; I think that it would be doing him a disservice to interpret it in any other way.

[Lord Campbell-Savours]

I have read the Hansard of the whole of that debate. It is clear that the decision that my honourable friend took was on the basis that there was a possibility of differential turnout arising from the arrangement whereby the referendum takes place on the same day as a number of other elections throughout the United Kingdom.

[Lord Lawson of Blaby]

As the noble Lord, Lord Elystan-Morgan, said that I was going to intervene in this debate, I had better do so; indeed, I had intended to do so. It is the first time that I have intervened in Committee on the Bill and I shall try not to detain noble Lords for too long. I do not need to, because the noble Lord, Lord Elystan-Morgan, made a number of important points with which I agree but, in particular, my noble friend Lord Lamont made all the main points very convincingly.

I just add one or two points to that. First, this is not merely a constitutional matter; it is a constitutional matter of great importance. If there is a low turnout, it may well be that that is because too many people are puzzled by exactly what the implication is of a change from first past the post to the alternative vote, so they do not feel able to cast their vote. For that reason, you might get a very low turnout. In fact, the alternative vote system is generally agreed to be a totally capricious system. Every inquiry that has looked into it, such as the Jenkins commission, found it to be totally capricious. It could produce extraordinary results.

Seeing the noble Lord, Lord Bach, in his place—I am very glad to do so—I give an example from the constituency of Blaby, which I had the honour of representing for 18 years and five general elections. I mention the noble Lord, Lord Bach, because he was one of my most distinguished constituents. Not only that, if I remember rightly—he will correct me if I am wrong—he was chairman of the constituency Labour Party.

[Lord Bach]

I still am.

[Lord Lawson of Blaby]

The noble Lord is a glutton for punishment. As the noble Lord, Lord Bach, will confirm, a characteristic of the constituency of Blaby was that it was always clear that the Conservative candidate—and I was fortunate enough to be the Conservative candidate for all those years—would come first past the post by a huge majority. However, two things were uncertain. The first was whether it would be an overall majority or fall short of an overall majority. In the five elections I fought, I had an overall majority in three of them and failed to get an overall majority in the other two. It was also uncertain as to which candidate would come second—whether it would be Labour second and the Liberal Democrat third, or the Liberal Democrat second and Labour third. In fact, on three occasions the Liberal Democrat came second and Labour third, and on the other two occasions it was the other way round, with Labour second and the Liberal Democrat third.

However, under the alternative vote system, which of the two came second and which of the two came third would have determined the result of the election. If the Liberal Democrat came third, it is a reasonable presumption that the second preferences would have been divided equally between myself and the Labour candidate and therefore they would not have affected the result; I would still have been elected. If, however, Labour came third, it is a reasonable presumption that the Labour voters would have given their second preference to the Liberal Democrat rather than to me—regrettable though that judgment might have been—in which case the Liberal Democrat would have been elected. Therefore the decision as to who was elected depended on who came second and who came third. It is an absurd, totally capricious system.

Furthermore, under the alternative vote system, if I had wished to maximise my chances of being elected, which is a reasonable ambition, I would have privately told all my closest supporters to vote Labour because that would reduce the risk of Labour coming third. I did not do that because we did not have the alternative vote. It is a ludicrous and capricious system which encourages insincere voting.

If we are going to introduce something like that—if we do make that move—there is a risk that when the public tumble to what is happening they will be extremely dissatisfied with it and there will be a serious loss of faith in our democratic system. It is important that that does not happen by inadvertence, as it were, because of a small poll. We will want as many people as possible to have bought into the change to reduce the risk of them becoming disaffected with our democratic system. We have problems of disaffection with our democratic system as it is; we do not want to maximise that. So we must have a threshold. As my noble friend Lord Lamont and others have said, every country has some kind of special supermajority or threshold requirement whenever it is making a constitutional change.

The question then arises of what kind of threshold it should be. Should it be as with the Cunningham amendment—I shall come briefly on to that—of January 1978, I think it was, in the Scotland and Wales Acts where the majority has to be X per cent—in that case the winning side had to get 40 per cent—or should it be a turnout threshold? I confess that I think that the Cunningham amendment was a better system; a threshold on overall turnout is not as satisfactory. However, I take the point of my noble friend Lord Lamont that it is arguable that to have a threshold for the winning score would be in conflict with the coalition agreement, whereas we have established that that is not the case with a threshold for turnout.

I confess within this private space that I do not regard the coalition agreement as holy writ and, although I am not the greatest constitutional expert, I do not believe that it is even protected by the Salisbury convention. Nevertheless it is right that we should have some regard for it on this side of the Committee. For that reason I am prepared to support the idea of an amendment introducing a threshold for turnout. I agree with the noble Lord, Lord Elystan-Morgan, that 25 per cent is ridiculously small and that it should be somewhere in the order of 40 per cent or 50 per cent.

22:00

This principle was of course agreed in the vote on the Cunningham amendment. A number of my noble friends in this House were Members of the other place at the time and, along with me, voted for the Cunningham amendment on the ground that a significant constitutional change should not be made without some kind of special threshold. I will read the roll of honour of those of my noble friends who supported this principle: my noble friend Lord Fowler, my noble friend Lord Higgins, my noble friend Lord Howell—now a distinguished Minister in our House—my noble friend Lord Hunt, my noble friend Lord Jenkin, my noble friend Lord Jopling, my noble friend Lord Lamont, my noble friend Lord MacGregor of Pulham Market, my noble and learned friend Lord Mayhew, my noble friend Lord Newton, my noble friend Lady Oppenheim-Barnes, my noble friend Lord Selkirk—although he was called something else then—and my noble friend Lord Stewartby. I will not go on but there were many others. Not one of those has told me that they have changed their mind on this principle. Since they have not indicated in any way that they have changed their mind, I must assume that they are still of that view and correctly so.

Therefore, I hope that my noble friend Lord McNally if he is answering this, or my even grander noble friend Lord Strathclyde if he is doing the honours, will take very seriously the huge support there is on this side of the House for an amendment of this kind on grounds of deepest principle and of not risking the faith of the people of this country in our democratic system.

[Lord Maclennan of Rogart]

Does my noble friend agree that the noble friends to whom he referred had one thing in common beyond their membership of his party and that was their desire to prevent the outcome being one that gave devolution to Scotland and Wales and that, similarly, those who are of the mind that he has expressed are in favour of preventing any change in the constitution today?

[Lord Lawson of Blaby]

I made clear the reasons for my argument. My noble friend is right that I quoted only my noble friends who voted in that way but it was a Labour amendment tabled by George Cunningham and had huge support too in the Labour Party. That was why it was carried.

For the life of me I cannot imagine why anyone would wish to see the alternative vote system. It is a crazy system and the only clear beneficiary might be the Liberal Democrat Party so it is possible that that has influenced its opinion slightly, although I think that is purely a coincidence. But it is very regrettable that the noble Lord is so keen to get the alternative vote system introduced that he is prepared to do it in a hole-in-the-corner way.

[Lord Grocott]

My Lords, I agree wholeheartedly with everything that the noble Lord, Lord Lawson, said, except in one respect. He anticipated, or perhaps reflected, on what might have happened, or could happen, in terms of people’s second preferences should there be an alternative vote system, or had there been in his constituency in the past. He made the assumption that every Labour voter would probably vote Liberal as their second preference. However true that may have been in the past, having seen the Liberal Democrats’ performance during the past six months, I would not make that assumption now. Not least, we have a coalition, so where do I put my second preference? I hope that the question will never arise, because, as I have made plain, if we were to have a referendum—and I would prefer that we did not—I would hope that the no campaign won.

I am very mindful of the time, so I shall not go on at any length. However, I have put my name alongside Amendment 44B in this group, which puts the threshold at 50 per cent, and I should like to make a couple of points. The first is to remind the Committee that, as my noble friend Lord Rooker pointed out very clearly, this is not an indicative referendum; it is a referendum which legislates. Should it be carried under the Bill as it stands, even by two votes to one—I know that I shall be criticised by the noble Lord, Lord McNally, for going to ridiculous extremes, but we have got to see the logic of the argument—the legislation would be passed. It would become part of the constitution of our country and represent the most dramatic constitutional change for a very long time.

I take it as read—at least, I hope that I can in this Committee—that if a Bill were passed at Third Reading in this House by two Members to one, with the remaining 800 Members wherever they preferred to be, and although it would be unchallengeable in constitutional law, it would be seen as ridiculous. I cannot believe that there is anyone in this House who does not think, though they may not want to put it in the Bill, that there has to be a threshold for a decision of this magnitude. The noble Lord, Lord Lamont, made a number of the points that I would have made. I simply say that I wholeheartedly agree with him that we are quite an unusual country—not unique, I think, but close to it—in there being no distinction between ordinary law and constitutional law. The only difference that we seem to apply is that it is increasingly assumed that major constitutional changes have to be ratified by referendum, which is not unreasonable. The reason for having a threshold is that, to quote a seasonal comment, a constitutional change is not just for five years; it is probably for life. If, as I half-anticipated, I had been intervened on and a noble Lord had said that Governments are elected by less than 50 per cent, I would have said that Governments come and go—we are now told that they can come and go only every five years, but they do come and go—whereas I think that we can all acknowledge that, should this change be made, it is incredibly unlikely that it would be reversed in our lifetime. That adds even greater import to the suggestion that we should be absolutely clear about the decision that we are making.

My amendment is for a 50 per cent threshold. It is not a figure that I have plucked out of the air, although “50 per cent” has constantly been repeated by the proponents of constitutional change. I have glanced through the most recent turnouts under the various electoral systems that operate in our country—there are far too many in my view, but that is not the point of this amendment. For local county council elections in 2009, it was 35 per cent; for Westminster parliamentary elections in 2010, it was 65 per cent; for the Greater London Assembly election in 2008, it was 45 per cent; for the Scottish parliamentary election, it was 51 per cent; for the National Assembly for Wales election, it was 43 per cent; for the European parliamentary elections, it was 34 per cent; for the European parliamentary elections in Northern Ireland, it was 42 per cent; for the Northern Ireland Assembly elections, it was 63 per cent; for the local government elections in Scotland, it was 53 per cent; for the local government elections in Northern Ireland, it was 62 per cent; for the Bedford Borough Council mayoral election, it was 30.9 per cent—I bet no one knew that one; and for the Greater London mayoral election, it was 45 per cent.

I hope I can convince the Committee that, for a major constitutional change, a 50 per cent turnout is not an unreasonable figure to validate that change. In fact, it is quite a modest figure bearing in mind that only half of those voting need to have voted in favour for the constitutional change to take place, which means one in four. Is it really an extremist position to suggest that, before we make this huge change, we should require one in four of our fellow citizens to vote in favour of it? That is the simple argument that I am presenting to the House and I hope the House will accept it.

[Lord Howarth of Newport]

My Lords, I am conscious of the time but I would like to say a few words because I think this is one of the most important groups of amendments we shall deal with in this Committee. I reject the proposition put forward by the noble Lord, Lord Tyler, that the debate and the vote in the House of Commons should constrain us in the analysis we make, and indeed the decision we take. I am glad that the noble Lord, Lord Lamont, similarly objected and I agree with him on that and I agree with him on everything else that he said.

Plainly, a decision to change the electoral system is a momentous one—it is one of the most important decisions that we could take in our constitutional affairs. It is playing fast and loose with the constitution not to write some sort of a threshold requirement into this legislation. It would be ironic if a reform, which is motivated in part for the very good reason that we have seen declining turnouts in one set of parliamentary elections after another over a long time, should be brought in on the basis of very low turnout indeed. That would be deeply unsatisfactory.

I am sure that it is right in principle that there should be a threshold and I am grateful to my noble friend Lady Hayter of Kentish Town for introducing this debate with her amendment. However, I agree with other noble Lords who have put the case that a 25 per cent turnout threshold is simply inadequate. However pessimistic we may be about participation in the other elections that are due to take place on 5 May, I do not think that any of us supposes that they will be less than 25 per cent. As the elections are to be combined with the referendum on the same date, it seems to me that it is all the more important that we should be very clear that people have come to the polls deliberately to vote on this issue of constitutional reform, as well as on the other issues that are before them in the other elections.

We need a high threshold to satisfy ourselves that there really has been—if indeed in the referendum a change in our voting system is to be approved—to borrow a phrase that has been a little tarnished by experience but is still expressive, the full-hearted consent of the British people. We need to be sure that this is a decision consciously and deliberately entered into and endorsed by a sufficient majority of the British people for us all to feel that they have together taken a decision in which they believe and with which, whatever our personal views may be, we must go along.

Grateful as I am to my noble friend Lady Hayter, I do not think that 25 per cent will do. I am grateful to the noble Lord, Lord Elystan-Morgan, for upping the ante but I would be with my noble friend Lord Grocott: I think that 50 per cent of those entitled to vote is a decent minimum for a change of this magnitude. My noble friend Lady Hayter’s amendment would mean that we could introduce this radical change to our political system on a basis of less than 13 per cent of those voting in favour—50 per cent of a turnout of 25 per cent is just less than 13 per cent. That would be inadequate. My noble friend Lord Grocott has stated a decent minimum and I think the debate should proceed on the basis that his proposition is the one we need to examine seriously and to consider precisely what we should do, but certainly to ensure that there is a threshold that enables this decision to be widely regarded as a valid and proper one.

22:15

[Lord Falconer of Thoroton]

My Lords, we are debating Amendment 43, which was tabled by the noble Baroness, Lady Hayter, and proposed a turnout threshold of 25 per cent. We are also debating Amendment 44B from my noble friend Lord Grocott, which proposed a 50 per cent turnout threshold. I thought that we were not debating Amendments 44A and 45A from the noble Lord, Lord Elystan-Morgan, which propose 40 per cent, but the noble Lord has, no doubt tempted by the terms of the debate, put forward issues in relation to it. However, we will not come to votes in relation to those amendments until Monday, so it is entirely a matter for the noble Lord, Lord Elystan-Morgan, as to what he says then. We are not debating Amendment 43A, from my noble friend Lord Rooker, which says the vote has to be 1 million votes ahead, and we are not debating Amendment 44 from the noble Baroness, Lady Hayter, which says that there must be a majority in each kingdom of the United Kingdom.

This is an important constitutional debate. I do not go down the route that the noble Lord, Lord Lawson, tempts us down, which is to say that AV is such an appalling system that we really need something very substantial before we change to it. We have to look at this issue on the basis of it being a major constitutional change. Our constitution has developed over the past three decades, whereby a substantial majority in the House of Commons is not regarded as adequate for substantial constitutional changes such as staying in the European Union, devolving powers to Scotland and Wales and, now, fundamentally changing the voting system. That approach to the constitution is reflected by practically every developed democracy in the world whereby something more than the normal vote in Parliament is required. If that approach is the right one, and I sincerely believe that it is the right one—and it is plainly an approach shared by the coalition Government, who have rightly regarded a referendum as necessary before the change is made—we need to dig a little deeper to see what sort of referendum is required to legitimise the change. I emphasise “legitimise”, because what is being required is something that makes the public accept that a significant change in our constitution has legitimacy.

If one looks at the sorts of turnout that one might reasonably expect if the turnout reflected other sorts of votes, one gets an indication of what sort of turnout one might get in this case. Approximately 20 per cent of the electorate in the referendum will also vote in the Welsh Assembly or Scottish Parliament elections; roughly the turnout for those is about 50 per cent, so 20 per cent of 50 per cent equals 10 per cent of the population voting. Approximately 60 per cent will vote in local authority elections, where the average turnout is 34 per cent, which produces approximately 20 per cent of the population. Some 20 per cent of the population will not vote on anything other than the referendum. It is not unreasonable to suppose that the turnout in relation to those voting only in the referendum could be as low as 20 per cent, which would produce a turnout of 5 per cent of the population. If one adds 10 per cent to 5 per cent to 20 per cent, you get 35 per cent. So on the basis of reasonable estimates by reference to other sorts of elections, you get 35 per cent of the population voting in this referendum. If it was close, that would mean that maybe as few as 19 per cent of the population would have voted for the change. The purpose of having a special rule about major constitutional change—and I have not heard anyone dispute that this is major constitutional change—is that there should be some special procedure to give the change legitimacy.

The idea that 19 per cent of the electorate, voting in favour of the change, gives the degree of legitimacy that is required seems to be wrong. In those circumstances, it looks pretty obvious that something else is required other than simply a referendum. The importance of having legitimacy is that we do not want to enter a phase in which our constitutional system of voting changes every time there is a change of government. If, therefore, there is to be a change—I do not need to quote Nick Clegg saying that this is the most important change since 1832—it is obvious that there has not been a change in our voting system for well over 100 years. This will inevitably have an effect on the make-up of the House of Commons. People will regard the system chosen as being a significant contributor to who won the election.

How do we deal with the issue of legitimacy in those circumstances if simply—

[Lord Rennard]

The noble and learned Lord is a very distinguished member of the previous Government, who brought forward the Constitutional Reform and Governance Act. It was carried through the other place before the general election with provision for a referendum on the alternative vote to be held before October 2011. It did not provide any provision whatever for a threshold. Will the noble and learned Lord tell us why that was not considered appropriate by his Government? On the issue of legitimacy, he suggests that it is terribly important that there should be enough people voting to justify anything. Does he recall that that Government in 2005 were elected with 35 per cent of the vote of British people on a 61 per cent turnout? In other words, only about 21 per cent of the electorate voted for that Government. Does he consider that that was legitimate?

[Lord Falconer of Thoroton]

First, I was not a member of the Government that put it forward. I think they were wrong not to have a turnout threshold in relation to it. Secondly, 35 per cent voting for the Government is approximately double the number that could vote for a change in the constitution. The critical point that I am making is that there is not a system in the world in a developed democracy that does not require something out of the ordinary before you make a change in the constitution. Why is that such a common provision right throughout democracies? It is because people understand that to make such a permanent change is much more important than changing a Government—you can throw the Government out in five years or four years, or in our system, even in two and a half years if they lose authority. You are stuck with the change for a long time. So please, on the Benches over there, think not about the result you want, but about what sustains our democracy. A change that comes about through 19 per cent supporting it may not be a change that has legitimate support. So our position—

[Lord Maclennan of Rogart]

Does the noble and learned Lord not accept that in the history of constitutional development in this country we have seen change—and we have seen progressive change. I ask him to listen to what I am saying.

[Lord Falconer of Thoroton]

I apologise. I should have been listening but I was distracted by fabulous information coming from the noble Lord, Lord Bach.

[Lord Maclennan of Rogart]

Perhaps I should make the point again, as briefly as I can. Does he not recognise that constitutional change and democratic legitimacy have been achieved in this country without public expressions of support at referenda? That history is far longer than is the history of referenda and there is very little precedent historically for referenda. No one considered that votes for women was not legitimate because it was decided by Parliament. Parliament does not cease to be sovereign because there is a referendum. That is true in respect of Europe and of devolution. It is also true in respect of the voting system. Surely the noble and learned Lord recognises that if there is a referendum result which does not give legitimacy it remains open to Parliament to react to that.

[Lord Falconer of Thoroton]

I have two points—I apologise to the noble Lord.

[Lord Maclennan of Rogart]

Parliament is still capable of introducing further legislation to take account of what has happened. That is not without precedent.

[Lord Falconer of Thoroton]

I have two points on that. First, the introduction of the referendum in our constitution effectively dates back to the European referendum. Once you have put the referendum into your constitution, it is very hard to go back on it—a point accepted by all political parties on this issue. Secondly, the position of saying, “Well, you can always change your mind if the level of support is not enough” would be legitimate if this were not a compulsory referendum, which requires the Minister to introduce the system of AV. If I may say so, with respect to the noble Lord, Lord Maclennan of Rogart, what this indicates is his instinctive acceptance that there are inevitably limits below which you cannot go.

Suppose the position was that only 25 per cent of the country voted in a referendum and that there was a majority of 12.6 per cent. Would anybody sensible say that that was sufficient justification? If this had been a sensible arrangement, Parliament would have kept control of that, but no: it was decided by this House and by the other House that it should be a compulsory referendum. In those circumstances, it is right for Parliament to address what a satisfactory turnout on it is. One of the things that we are doing in this House is exploring what the effect of the changes in the constitution has been, one major change being the introduction of referendums in order to make major changes to the constitution.

My view on this, a view which I express on behalf of my party, is that having rejected the idea of an indicative referendum it is for this House to address what, if any, threshold there should be. There should be a threshold because, in my view, low figures of the sort that I have indicated are not satisfactory. I am much encouraged in this by the support from the noble Lord, Lord Williamson, on the Cross Benches, and from the noble Lords, Lord Lawson and Lord Lamont. I did not realise that my noble friend Lord Bach had been chairman of that Labour Party constituency party but I now know why, for all those years, the noble Lord, Lord Lawson, was so sharp. My noble friend Lord Bach kept him so sharp in Blaby.

I ask the noble Lord, Lord McNally, to reflect on the need and reason for a referendum. Will he explain to the House what he would do if there was a 25 per cent turnout, which is perfectly conceivable, with a very small majority in favour of a change to the alternative vote system? Does he regard a 12.6 per cent vote in favour of that change as something that gives it legitimacy? Will he please not say that he is not going to go into hypotheticals? He has got to deal with the issue. One of the problems and frustrations that I think the whole House is feeling, with the possible exception of the noble Lords, Lord McNally and Lord Strathclyde, and the noble and learned Lord, Lord Wallace of Tankerness, is the refusal on the part of the government Front Bench to engage with any degree of depth on the constitutional issues that the Bill raises.

Everybody agrees that the threshold issue is important. I will not support my noble friend Lady Hayter’s amendment because it is obvious that 25 per cent is too low a threshold, but it may well be that we shall support the thresholds in the other amendments. I invite the noble Lord, Lord McNally, to give us some idea of the Government’s thinking on this and how they say that the referendum could give legitimacy.

22:30

[The Chancellor of the Duchy of Lancaster (Lord Strathclyde)]

My Lords, what a most unusual debate we have just had. We had a fascinating history lesson from my noble friend Lord Lawson; I will come back to that. We had a disagreement between my noble friend Lord Tyler and the noble Lord, Lord Campbell-Savours, about what was said in the House of Commons and what was meant by what was said, and different bits being prayed in aid. We had a slight disagreement about the grouping; I slightly lost track of it, but I will go with the mood of the House, whatever it is. I am very happy to speak to all the numerical thresholds, but not to the amendment of the noble Lord, Lord Rooker, and not to the noble Baroness’s other amendment about separate nations of the United Kingdom having different thresholds.

It is most unusual, because while this House often disagrees with another place, I cannot think of a time—I am sure that someone will find one—where another place voted so overwhelmingly in one way, and where the tone of this debate has been the other way. My noble friend Lord Tyler was right to remind us about what happened in the House of Commons; when it was asked to vote on thresholds, it voted 549 to 31. It was an astonishing, astounding majority. Chris Bryant, speaking for the Labour Party, said that he did not think that it is appropriate to bring in a threshold. I am genuinely confused by the position of the noble and learned Lord’s party as to whether or not they are in favour of a threshold. I think he said that he was; the Labour Party next door was clearly not. They may have changed their minds, or it may be something else. The noble and learned Lord cracked on about 19 per cent and how dreadful that would be, yet in 2005 the Labour Government were elected with 21.6 per cent of the electorate—derisory for a referendum on 19 per cent, but jolly good for the Labour Party on 21.6 per cent. We can make of that what we want.

In 1997, this House debated these issues. What did the Labour Party say in 1997? The noble Lord, Lord Sewel, who is sadly not in his place tonight, was the Minister. He said:

“The threshold, as we have demonstrated, is one of the most dangerous introductions into the democratic process that has been engineered”.—[Official Report, 7/7/97; col. 467.]

That was the Labour Party then. Tonight, the Labour Party is doing what it used to accuse the Liberal Democrats of doing—of saying one thing in one place and another in another, and changing their minds as the debate went on. We will have to see how this continues over the next few days.

My noble friend Lord Lamont spoke beautifully, as he does. I very much accept his view—although rather less so—that imposing a threshold might initially appear attractive; on the surface it may seem to offer an extra layer of reassurance and of legitimacy, particularly if the change being put to the vote is one that you personally do not favour. It is the Government’s view, however, that if people want change, and if the majority of those who turn out to vote want change, we cannot deny them this by imposing artificial barriers. People should know that if the majority of people vote for AV in the referendum, they will get AV. We must let people have their say, otherwise we will not help to restore people’s faith in politics.

That is why I was so fascinated by my noble friend Lord Lawson. I am sorry that there are not more colleagues here from those days. I was probably too young to vote in the referendum in 1978, but I accept that the Conservative Party voted for the threshold. I do not remember it being an issue of deepest principle. I think it was low-down cunning politics—and quite rightly, because the Labour Party was divided on the issue. It was trying to stop the nationalists by introducing devolution, and the Conservative Opposition quite rightly saw a great opportunity to try and ensure that the referendum would not be won, and that that would so destabilise the Labour Government that an election would be forced, and we would have the great years of rule. So my noble friend Lord Lawson was quite right in voting for it.

[Lord Rooker]

I have kept out of this debate, but I will give the Leader of the House the reason. It was the result of one of the finest speeches that I heard in 25 years in the House of Commons. The place was packed and I suspect that half the people in there did not know at the beginning how they were going to vote. George Cunningham turned the House around. I say that in all sincerity; he is no personal mate of mine. It was an absolutely magnificent speech. That was a big factor, along with the bit of low cunning that people saw as a consequence as well.

[Lord Lawson of Blaby]

If I may, while my noble friend is having a well earned rest, let me say that it was not a whipped vote on the Conservative side. It was a free vote and we were influenced in the way that the noble Lord, Lord Rooker, described. As an indication that it was a completely free vote, my noble friend Lady Thatcher, the Prime Minister at that time, did not take part in the Division. She did not vote—or did she? I do not recall.

[Lord Falconer of Thoroton]

She was Leader of the Opposition.

[Lord Lawson of Blaby]

Sorry, she was leader of the party, but she did not take part. It was a completely free expression of opinion based on principle.

[Lord Strathclyde]

My Lords, that just goes to show what happens when you have unwhipped votes. I am sure that my noble friend Lord Lawson knew which way he was going to vote on that day and rightly so. That is all part of the fabric of history that has brought us to this point. My point of principle remains that if people want to vote they need to know that, if there is a majority, they are going to get what they voted for.

[Lord Campbell-Savours]

What happens if only 13 per cent of the registered electorate vote in favour of the change in the referendum question? Will that 13 per cent, which is one in eight people in the country, be taken as the basis on which we can make this huge constitutional change?

[Lord Strathclyde]

My Lords, under the terms of the Bill, yes. But is that likely to happen? The noble and learned Lord got his calculator out—

[Lord Rennard]

My Lords, does my noble friend the Leader of the House agree that, if only 12 per cent vote against this change, there cannot be much opposition to it?

[Lord Strathclyde]

Up to a point, because I am going to argue in a moment that a threshold will encourage abstention and that therein lies a danger. Also, the Constitution Committee of this House recommended that the presumption should be against voter turnout thresholds in referendums.

[Lord Falconer of Thoroton]

It says, though, that that may be different in relation to serious constitutional issues.

[Lord Strathclyde]

Well, I will have to check—not that I disbelieve the noble and learned Lord, but I will have to reread my well thumbed copy of that report.

We have not specified a voter turnout threshold, because we want to respect the will of the people who vote in the referendum, without conditions or qualifications. These amendments seek to specify a minimum turnout threshold so that, if less than 25, 40 or 50 per cent of those eligible to vote in the referendum cast a vote, the result will be voided.

Specifying a threshold for voter turnout can effectively make every abstention a no vote. People may abstain from voting in a referendum for any number of reasons, such as ignorance, apathy or ambivalence. It does not seem appropriate to regard such people as effectively having expressed a preference. In addition, a threshold may create an incentive to abstain from voting for those who favour a no vote. This cannot be right.

[Lord Lawson of Blaby]

If my noble friend will allow me, let me say that it is not as simple as that. It is not the case that an abstention will count as a no vote. It might well be the case that, if there is a considerable body of opposition to the change, it will win if its members vote, but if they stay at home and do not vote, that will allow the people who vote yes to win if they get over the threshold. So it is by no means as simple as my noble friend said; in fact, what he said is totally wrong. It might be that in certain circumstances it would help the no case, but in other circumstances it would help the yes case. That is the truth of the matter and people will therefore be inclined to vote if they understand what they are voting about.

[Lord Falconer of Thoroton]

Just to follow up on that important point, what is the evidence that the noble Lord, Lord Strathclyde, is relying on?

[Lord Strathclyde]

It is obvious that if there is a threshold on turnout and you encourage people not to vote, the threshold is not reached.

[Lord Campbell-Savours]

My Lords—

[Lord Tyler]

My Lords, the noble Lord, Lord Campbell-Savours, seems to have shouted, got up and sat down. The issue here is simple arithmetic. Suppose that the amendment in the name of the noble Lord, Lord Grocott, went through and 45 per cent of the registered electorate voted yes while 4 per cent—I do not think that it will quite so dramatic, but who knows?—voted no. The noes would win because only 49 per cent of the electorate would have turned out. I am very sorry to have to disagree with my noble friend Lord Lawson, but my noble friend the Leader of the House is right: if you do not vote, it is a no vote.

[Lord Falconer of Thoroton]

I do not think that the noble Lord, Lord Tyler, has been listening to his noble friend Lord Lawson, who is saying that sometimes a threshold will encourage people to vote yes. The question that I am asking the noble Lord, Lord Strathclyde, is: what does the evidence point to?

[Lord Strathclyde]

My Lords, we have had only one national referendum. What evidence there is exists because it is either common sense or, as my noble friend Lord Tyler has worked out, a matter of simple mathematics. Interestingly, the noble and learned Lord, Lord Falconer, did not say that my noble friend Lord Tyler’s example was wrong. In fact, he was quite right; in his example, where 45 per cent vote yes and 4 per cent vote no, what happens is that the answer is no. Where is the justice in that? I am sorry that that is hypothetical.

[Lord Falconer of Thoroton]

The issue, as posed by the noble Lord, Lord Lawson—correctly, in my view—is whether or not the threshold encourages votes. There have been referendums not only in the United Kingdom; there have been referendums in a whole range of countries. I presume that the Government have done some research on this before responding on the issue of thresholds. What does that research show? The noble Lord, Lord Strathclyde, is shaking his head, looking bewildered and saying, “No, I can’t tell you”. He is saying to me that he regards the idea that the Government would have done any research into this as preposterous.

[Lord Rennard]

Will the noble and learned Lord tell us what research his Government did in the previous Parliament on this very issue before introducing their Bill?

[Lord Falconer of Thoroton]

I was not in the Government at the time. The noble Lord, Lord Tyler, is pointing at me in a rather aggressive way. I was not in the Government then, but the noble Lord, Lord Strathclyde, has access to a range of excellent civil servants who will tell him what the research is. I take it from the remarks that the noble and learned Lord, Lord Wallace of Tankerness, is making from a sedentary position that the Government have not troubled to do the research. He can correct me if I am wrong.

[Lord Goodhart]

My Lords, is it not an extraordinary situation that the effect of what the noble and learned Lord is saying is that, if 45 per cent of the voters voted yes and 4 per cent voted no, the noes would win, but if 45 per cent voted yes and 40 per cent voted no, the yeses would win?

[Lord Falconer of Thoroton]

That may be dealt with by the level of the turnout requirement.

[Lord Grocott]

The Liberal Democrats, suddenly energised, have identified a problem that is clearly troubling them. I suggest to them, as they anticipate the possibility that 45 per cent of a 50 per cent turnout would vote yes, that they need to introduce a threshold along the lines of the Cunningham amendment. On that basis, the question would have been passed. I look forward to their amendments to deal with the adjustments that they anticipate.

22:45

[Lord Strathclyde]

My Lords, this useful little exchange has demonstrated why we rather oppose these thresholds on turnout or anything else.

Fundamentally, this is about turnout. The noble Lord, Lord Elystan-Morgan, said that the amendment was an insurance against the disaster of a low turnout, which noble Lords have said that they feared. Let me reassure the House. There are a number of reasons to believe that this will not be the case. Combining the referendum with other elections on 5 May will increase voter turnout. The campaigns in the run-up to the referendum will increase public awareness and people’s desire and interest to vote. Additionally, the work of the Electoral Commission in promoting public awareness about the referendum and the media coverage that the referendum will receive gives us reason to believe that the referendum will secure a very healthy turnout. Indeed, statistics from previous referendums in the UK show that turnout is on average about 50 per cent.

The Bill does not specify a voter turnout threshold since it is not necessary or desirable. We should listen to the overwhelming vote against this type of amendment that was cast by another place. I very much hope that the noble Baroness will withdraw her amendment and that other amendments in this group will not be moved.

[Baroness Hayter of Kentish Town]

My Lords, I have had an interesting lesson in politics tonight. I am growing up fast. I thank some of the speakers for part of that. I was made to feel very sheepish by the excellent research done by the noble Lord, Lord Lamont, on other jurisdictions and by the noble Lord, Lord Lawson, on the noble Lords who sat with him in another place. I have also had a few lessons on arithmetic and one on the continuity of effort by my noble friend who continues as chair of his local party. My noble friend Lord Howarth of Newport said that I was being “simply inadequate” about the 25 per cent threshold. The words “ridiculously small” came from the noble Lord, Lord Lawson, but I think the sentiment was the same.

We still find that, at the core of this, the “small premium” that could achieve insurance against the remote possibility of small turnout remains essential and a constitutional issue of great importance for this House to consider. Unlike the election of a government, it is effectively irreversible. We want as many people as possible to have bought into the change should it happen. The full-hearted consent was how somebody put it. It is interesting that, other than the Minister, the only opposition to this has come from the Liberal Democrats—a party that has the word “democrat” in their name. I find it interesting that they oppose this fairly minor bit of democracy of having a threshold. There should be a threshold because it is a decisive referendum. It is not an artificial barrier. Unlike my good friend George Cunningham, I cannot deliver a magnificent speech to persuade you all of that this evening. I hope that these discussions will continue. However, to allow that and further consideration, I beg leave withdraw this amendment.

Amendment 43 withdrawn.

House resumed.

Terrorist Asset-Freezing etc. Bill [HL]

Wednesday 15th December 2010 Lords Chamber

Returned from the Commons

The Bill was returned from the Commons agreed to.

House adjourned at 10.49 pm.