Scotland Bill

Lord Browne of Ladyton Excerpts

Thursday 26th January 2012 Lords Chamber

[Lord Wallace of Tankerness]

No, my Lords, that would not be possible, as eligibility matters will remain reserved. I hope that on the basis of what I have indicated—

[Lord Browne of Ladyton]

I am grateful to the noble and learned Lord for giving way. From the way in which his voice changed, I had the sense that he was moving towards a peroration.

I am beginning more clearly to understand this division. I understand the difference between the framework within which the elections are conducted, as opposed to the administration; and I understand the difference that I imposed on this debate between the electoral system and conduct. I should be grateful if the Minister would go through the list that I gave—at some stage, if not now. Perhaps he may write to tell me where at least two of those matters lie. One of them may be straightforward and we will come to an amendment on it shortly, one hopes—the procedure and framework for filling regional MSP vacancies—but where does the abandonment of a constituency poll or notice of it to be countermanded lie? Those two matters concern me and I will ignore the other two. I should just like a reassurance that beyond the list that I gave there are no matters other than those the noble and learned Lord has identified.

[Lord Wallace of Tankerness]

My Lords, I will certainly write to confirm, but I can seek to indicate that the rules regarding the regional list will remain reserved to the Secretary of State. On the abandonment of a poll, my understanding is that the issue in question is not so much with the abandonment of the poll itself but where that leads to a difference in the calculation of the regional vote. It is that calculation that would be affected if there was an abandonment of a poll in a particular constituency. I am seeing nods that I have actually got it right. That is the substance of this reservation. I will confirm that, but I hope that that has been a sufficient explanation to the noble Lord.

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[Lord Browne of Ladyton]

My Lords, I shall speak to the amendment in this group standing in my name and that of my noble and learned friend Lord Boyd of Duncansby. I also have something to say about the amendments tabled by my noble friend Lord Foulkes.

My amendment would grant the Scottish Parliament the power to ensure that its elections are never again held on the same day as another national poll. The amendment is nearly identical to one tabled by my honourable friend Tom Greatrex, the Member for Rutherglen and Hamilton West, at the Public Bill Committee stage in the House of Commons. However, I regret that during that debate the Parliamentary Under-Secretary of State for Scotland and many others were diverted by the then controversy of the imminent application and interaction of the Fixed-term Parliaments Act. As far as I can see, although my honourable friend spoke to the amendment, it was never properly answered. Therefore, it has been repeated here in order to get an answer. If the answer allows for the avoidance of a coincidence of polls such as we saw in 2007, I will be greatly satisfied.

As noble Lords will know, the coincidence of local government and Scottish Parliament elections on 3 May 2007—and other factors—led to the rejection of 146,099 Scottish Parliament ballot papers and 38,362 local election ballot papers. It was the nadir of electoral administration in the United Kingdom, and everybody has focused on ensuring that it never happens again. It is the firm belief of this side of the House that never again should the people of Scotland be subjected to the confusion and chaos of two polls on the same day. We strongly opposed the coalition Government's decision to impose a referendum on the alternative vote system on the same day as the Holyrood election. The Minister said that it passed off without incident, but we will never know what effect that coincidence had on the way in which people behaved. There was no repeat of the dreadful circumstances of 2007, but I argue in my amendment that we should try to avoid repeating the coincidence if at all possible.

I am conscious that Clause 2 relates to the administration of the combination of polls that would be required should there be such a coincidence. I have nothing to say about that; I agree with it. We have been combining polls in those circumstances probably since 1978 or before. It makes good sense. Therefore, I am happy to let Clause 2 pass. What I am concerned about is seeking to use the device of the 1998 Act to avoid this. If the clause is properly drafted—and I hope that it is—it would grant the Scottish Parliament the flexibility to move its poll in the event of a coincidence. It would mean that there should never be any future coincidence of polls unless the Scottish Parliament decided otherwise. Most people believe that probably we cannot have that coincidence. However, despite the Fixed-term Parliaments Act and the devices of extending the period of a Parliament, in particular of the Scottish Parliament, that the coalition Government have agreed to, there is the possibility of an extraordinary election—some noble Lords on this side of the House would quite like next to see ordinary election, despite the Fixed-term Parliaments Act—coinciding with a date fixed for a Scottish Parliament election.

I got myself into some difficulties with the arithmetic of trying to work out whether coincidence is at all possible with the European Parliament elections as a consequence of the movement of the Scottish Parliament elections. It may just be possible, which is why the amendment anticipates the coincidence. I may be wrong about that, but we could in future have to use the device of extending the Scottish Parliament’s time again to avoid coincidence. That may throw up the possibility of a European Parliament coincidence. We believe this is the best way to do this. It should be a matter for the Scottish Parliament. In response to Gould, the Scottish Parliament committed to decoupling Scottish Parliamentary and local government elections, which was the real mischief that caused the problem in 2007. Similar provisions have been made to try to ensure that Scottish parliamentary and UK general elections do not follow the same cycle, as I have already said. The Calman commission recommended that, for reasons of practicality and principle, Scottish parliamentary elections should be administered at the level closest to those affected by them. We have already debated that to a degree. In a sense, it was the electorate of the Scottish Parliament who were the victims of the catastrophe that was the 2007 election. We believe that as a mature Parliament the Scottish Parliament should have the responsibility to decide whether it wants to allow this coincidence to persist, should it happen because of the rhythm of parliamentary elections or the possibility of an extraordinary election. This amendment is devised to achieve that possibility.

I turn to the amendments tabled by my noble friend Lord Foulkes of Cumnock. I congratulate my noble friend and, by extension, the noble Lord, Lord Steel of Aikwood. Each of them identified lacunae in the framework for Scottish elections, which is a phrase that I will now use, to the Scottish Parliament that could be addressed. I was not aware that there is no process for filling a vacancy for an independent member in the regional part of the system. That should not be allowed to continue. I understand that my noble friend’s approach to this is to devise a method that is very similar to the method adopted for electing regional members. It is very close to that, if not precisely the same. I urge the Minister to take this away to see whether, at some stage during the passage of this Bill, we can deal with this. His advisers are, in addition, capable of dealing with a lacuna that has been identified by the noble Lord, Lord Steel of Aikwood. I suggest that the Minister considers that too. It would genuinely be in the spirit of the appropriate approach to this legislation. I am sorry that the Calman commission did not have its attention drawn to this problem because I am sure that if it had the noble and learned Lord in another guise may well have been party to a recommendation to resolve it.

I turn to Amendment 16 which the noble Lord, Lord Steel, identifies as being the more substantial amendment. My noble friend Lord Foulkes of Cumnock is a man of extraordinary experience, not just in your Lordships' House but in the House of Commons and in the Scottish Parliament. Some of us were privileged to be at the celebration of his 70th birthday in the Gorgie Suite in his beloved Tynecastle Park on Saturday night. He knows where my allegiances lie, and I am delighted that there is at least one reason for celebration in the Gorgie Suite in Tynecastle this year because there will be precious few others. For those noble Lords who do not know what I am referring to, in an act of extraordinary generosity his family invited almost 200 people from all over the world to join the celebration of his 70th birthday. The fact that almost nobody refused the invitation no matter how far away they came from or, it seemed to me, failed to turn up is a measure of the high esteem in which he is held. I refer to this because the speeches that night celebrated a lifetime of service to politics in Scotland and to public life. It is from that background that he speaks when he rises in your Lordships' House, and he ought to be listened to carefully. However—

[Lord Foulkes of Cumnock]

However!

[Lord Browne of Ladyton]

However, I regret that in this case I cannot support my noble friend’s amendment. If there is a mischief here, it seems to me that the solution lies in the hands of the political parties. We should not be legislating for this and I am surprised that we have in fact legislated in Wales, but if the Welsh people wanted that, that is fine.

For many years, the Labour Party had a voluntary prohibition on this. We had a rule that you could not stand for both the lists and the constituencies. We departed from that at the last election to the Scottish Parliament and because of that Sarah Boyack is a Member of the Scottish Parliament. That seems to be a good result; apart from anything else, it may be a reason for maintaining the status quo.

[Lord Steel of Aikwood]

Is the noble Lord aware that the Conservative Party in Scotland had precisely the opposite rule—that in order to be on the list you had to stand in a constituency?

[Lord Browne of Ladyton]

I am most grateful. Every day I come to work in your Lordships’ House I learn something, and that is today’s learning experience. I had no idea that that was the case. Maybe at some stage—I will not take up your Lordships’ time with this now—somebody will explain to me why that was the case.

[Baroness Randerson]

Perhaps I can add to the amount the noble Lord has learnt today. It was not really the case that the people of Wales wanted to abandon dual candidacy—the Labour Party in Wales was very keen on that. Consultation produced a total lack of interest on the part of the people of Wales. However, although the system of election is better than first past the post, it is rather chancy. Not allowing dual candidacy actually increases the chances of strange results happening. For example, in the last Welsh elections the Conservative Party was extremely successful, led by a leader who was not able to be a constituency candidate because he was a list candidate. He was so successful and they won so many constituencies that he lost his list seat. It does enhance the problems of the system.

[Lord Browne of Ladyton]

I am very grateful to the noble Baroness for continuing my education. I am better informed than I was when I rose to speak. I have to say that when I started in my political life, the people of Wales and the Labour Party were almost synonymous. In any event, one of the consequences of our generous devolution of power has been that with proportional representation in the political colour of the United Kingdom, parties have taken advantage of opportunities. I accept that and it is all part of democracy.

I am not arguing for maintaining the status quo because of the outcome. In fact, I pray in aid Arbuthnott. The Arbuthnott commission was set up to look into constituency boundaries for the Scottish Parliament, because there was an issue of divergence of boundaries between the Scottish Parliament and the United Kingdom Parliament, and voting and representation in Scotland. I have an extract of the commission’s report, entitled Putting Citizens First: Boundaries, Voting and Representation in Scotland. I am looking at paragraphs 4.5 onwards. In moving his amendment, my noble friend quoted from Arbuthnott. I do not intend to quote all these 12 or 13 paragraphs, but they seem to set out a very coherent argument for why it would be inappropriate to depart by law from what has become the practice of dual candidacy.

With all due respect to my noble friend, I will read the conclusion, paragraph 4.60, which in a sense contradicts some of the thinking. It states:

“The Commission believes that preventing dual candidacy would be undemocratic and agrees that it would place”—

and here I think it is quoting a witness—

“‘an unnecessary restriction on the democratic rights of potential candidates, parties and local electors to have as unrestricted a choice as possible in an election’.”.

Certainly, in Scotland, as a consequence of divergent party practice, in a situation that permitted dual candidacy, there is a belief that people took advantage. In my view, political parties just need to learn to make the best of the circumstances in which they are operating and then we can all take advantage of the circumstances, rather than changing the circumstances or the opportunities that other people take advantage of.

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[Lord Wallace of Tankerness]

The noble and learned Lord is right. We cannot speculate on what happens in an Administration of whom we are not members, but I can confirm what my noble friend and the noble and learned Lord said about the Administration of whom the three of us were members. The procedures and proceedings in these matters were as they have described.

To return to Clause 7, the limited reference procedure that we are seeking would therefore allow the law officers to refer to the Supreme Court only the provisions with which they have competency concerns, while, as I said, allowing the rest to go forward to Royal Assent. We believe that this is an appropriate and sensible method of helping to ensure that the work of the Scottish Parliament runs as smoothly as possible.

On the amendments tabled by my noble friend Lord Selkirk to Clause 7, through our engagement with the Law Society of Scotland the Government have, as my noble friend indicated, tabled amendments that reflect the intention behind his amendments. I wish to thank my noble friend for looking at this clause closely and for tabling his amendments. The government amendments have the same effect; I am advised that parliamentary counsel think that they have a more appropriate form of wording, but the effect is exactly the same. We therefore very much support the amendments that he has tabled, and I hope he will withdraw his amendment in respect of the other amendments that have been tabled.

[Lord Browne of Ladyton]

I am grateful to the Minister. He will understand why I seek to intervene at this stage. I think it would be appropriate to point out that in the House of Commons Tom Greatrex moved a very similar amendment that was rejected, or at least not supported, by the Government at that time. The gratitude of the House to those who have created this resolution to the problem needs to be shared by him as well.

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[Lord McFall of Alcluith]

My Lords, I have just a few remarks to make on my noble friend’s amendment. I remember the then leader of the Labour Party, Tony Blair, saying to the Parliamentary Labour Party just after the Scottish elections that he did not realise that he had been so generous to the Conservatives in Scotland. He had revived them as a result of that issue.

Two issues are raised in this amendment. One is the alienation of the political class from the community, and the other is the community dimension. When I was elected in 1987, we had a percentage turnout in my constituency around the mid-70s. By the end it was down to 61 per cent, while the turnout for the Scottish Parliament was about 50 per cent. That is a big issue for us as politicians. We are alienating ourselves from the people, and the result is that that feeds disillusionment. Things were bad enough with the expenses scandal, but if we go on like this we will feed that disillusionment.

I remember talking many years ago in the European Parliament to an Irish politician, a newly elected MEP, so I said rather naively, “You must be quite tired and looking for a bit of a break”. “No”, he replied, “I was next on the list and I have just come in”. It struck me at the time that the link between the representative and the people of the community was broken, and that is a bad thing for politics and a bad thing for communities. We have to look at the alienation that exists at the moment, along with a loss of trust in the system and politicians.

The community dimension is very important because people are proud of the Member of Parliament who represents them and their interests. As others have said, Members are also proud in taking the interests of their communities to Parliament. The latest Bill which the Government have brought forward is indeed representation by numbers. In the long run we will suffer as a result of that situation.

I understand that there is no perfect system, but we walk into things with our eyes open. For example, the latest Bill the Government have put before us for House of Lords reform presents the possibility of Members being here for 15 years. It is obvious that they will feel that they are superior to the Members of the House of Commons as a result of that. Let us take the Finance Bill. The House of Lords cannot touch it, but that must be the first casualty because we will have elected Members here who have to go back to their constituencies. All politics is about priorities—it is about what is spent on health, education and transport. Can anyone say in all honesty that the people who are representatives here will not look at a Finance Bill as a result? If we pass the Bill, that will hit us like a train. We have an opportunity to be sensible about these issues and tie everything up. While I go along with my noble friend, I do not think that this is the time to put this forward. There are big issues on the agenda and I am grateful to my noble friend Lord Foulkes for raising them in his amendment.

[Lord Browne of Ladyton]

My Lords, I know my limitations and that I will be unable to match the gratitude of the noble Lord, Lord Steel of Aikwood, to my noble friend Lord Foulkes, but I will do my best. That is all I have to offer him. I thank him for bringing forward this amendment. I believe that he has made the case for a review of the electoral system used for elections to the Scottish Parliament. He made it by reminding us of the promise that the system would be kept under review; of the acceptance of the recommendations made in the Arbuthnott commission report in 2006; and, if I remember correctly, of the acceptance then that it would be appropriate to have a review of the electoral system for the Scottish Parliament following the May 2011 elections—which recommendation I recollect was accepted by Douglas Alexander, the then Secretary of State for Scotland. That acceptance may not have transferred to the new coalition Government and the present Secretary of State, but I suspect that if he reread Arbuthnott, he would come to the same conclusion in relation to that review as did Douglas Alexander.

For that reason, I accept that there is a case for a review. I was interested in the intervention made on my noble friend Lady Liddell by the noble Lord, Lord Stephen, who indicated that he had some reason to believe that the current leadership of the SNP in Scotland had welcomed the review and might be inclining towards the views of my noble friend Lord Foulkes about what system should replace the present one.

My noble friend expressed some surprise at that, but I am not surprised, because the SNP now has the constituencies. There is a tendency for a party’s view of the electoral system to reflect either its wish to hold on to the status quo or its desire to disturb it. That is exactly why my noble friend is right to suggest that the review needs to be carried out independently of politicians, and the noble Lord, Lord Forsyth, is right to support him.

Perhaps part of the problem with the present system was that it was a compromise agreement between political parties which had an objective to disturb the status quo. My own experience is that some of the concerns about the electoral system that is used for the Scottish Parliament are exaggerated, but I do not have comprehensive experience all over Scotland of how the system works. I know that people whose views I respect have concerns about it and they have been articulated here in our debate.

I suspect that the noble Lord, Lord Steel, is partly responsible for forcing upon the Electoral Commission a numerical priority. We have had two experiences of this in Scotland. One was in a review of boundaries for the Scottish Parliament elections, when my recollection was that the instruction that went out to the Scottish Boundary Commission was in its interpretation so restrictive that it took the basic building block and just applied it numerically from one starting point across Scotland. With one or two exceptions, none of its recommendations survived the appeal process or presentation to the sheriff principal because they were ridiculous in relation to communities. I remember the debates about the constituency boundaries and voting systems Bill, when my noble friends were queuing up to say that that is exactly what would happen if we forced that structure, or any part of it, on the Boundary Commission again through that legislation. So, in a sense, this legislative body has exacerbated the problem through that legislation.

I accused the noble Lord—I hope not too seriously—of being part-author of that problem. However, he may not have voted against the attempts that were made to ameliorate the effect or to stop it, but I have a recollection, certainly, of people from his Benches voting against the amendments that were tabled through the best endeavours of people on this side of the House who knew exactly how it would work and tried to prevent it happening. If it does happen, some people will have been the authors of their own misfortune by creating a separation between communities and constituencies.

We have yet to see how the review of constituency boundaries will work out but I predict confidently that when people realise how they will take effect in their communities, Members of Parliament of all parties will be screaming from the rooftops. Not only that, communities from all over the country will come to Members of Parliament and politicians and say, “What are you doing here? What have you done?”—and it will be interesting to see how many people stick by the arguments that they made during the passage of the Bill as a justification for doing this. However, that is perhaps another matter. I did not introduce the issue into the debate but I have taken advantage of the opportunity to make my point.

Having supported the general tenor of the debate—that the time has come for a review—I say to my noble friend that I do not think this is the vehicle for it. Earlier in the debate I understood the Minister to indicate, possibly in anticipation of this amendment, that the Government were minded to explore whether the time had come for a review; that they were going to do so in an appropriate way by consulting across parties; and that the voting system for the Scottish Parliament could be included if there was consensus and agreement for such a review.

That is, of course, the way in which we should proceed with all constitutional change; we should consult and seek consensus so that we can go forward. No political party owns the constitution and we all have a responsibility to preserve certain parts of it to hand on to future generations. It belongs to the people, not to us, and we should ensure that we do not seek party advantage out of a review of the constitution. If there is to be constitutional change in this area, that is the appropriate way to do it—not by, with all due respect to my noble friend, a provision in this Bill.

The structure that my noble friend has suggested has many of the right ingredients for a review. The timing that he proposes, however, would, if we pass the amendment, divert us from what should be the focus of our attention for that period of time and until the referendum in Scotland—that is, making the progressive, proper, forward-looking argument for keeping Scotland in the union; we should not use any of our resources for considering the system for electing Members to the Scottish Parliament. In my view—and I am afraid to say that this is where my gratitude to my noble friend runs out—this is the wrong vehicle. I prefer the Minister’s indication that it will be done in an appropriate way by a review instituted with some degree of consensus. The discussion needs to go beyond political parties into civic Scotland. It is the wrong time, but I am grateful to my noble friend for allowing this debate.

[Lord Wallace of Tankerness]

My Lords, the amendment moved by the noble Lord, Lord Foulkes, has generated a considerable amount of discussion on the merits or demerits, as perceived by noble Lords, of the present electoral system for the Scottish Parliament. I declare a non-interest: I was not at the noble Lord’s party, but I can assure him that that has no bearing whatever on the response I will give to his amendment.

He wishes to set up a committee to review the electoral system used to elect Members of the Scottish Parliament. It is tempting to go through the history of how we arrived at the electoral system we have. I shall resist that temptation, other than to say, as was indicated, that it was a compromise. It was obvious at the time and is the case. My noble friend Lord Steel said that there was a commitment to review the system after two elections. I do not remember such a commitment but, nevertheless, the Arbuthnott commission was established jointly, if my memory serves me correctly, by both the Scottish Government and the United Kingdom Government to look at the electoral system. It reported, recommending some revisions to the electoral system. I try to remind myself what they were. The Arbuthnott commission recommended that the mixed-member proportional system we have for elections to the Scottish Parliament should be revised to give voters more choice. It suggested that the closed list should be replaced by an open one, that the boundaries should be based on local authority areas and that a role should be defined for the regional MSP. Self-evidently, these recommendations were not taken forward or implemented.

The commission went on to say that,

“our revised electoral system, if implemented, should be reviewed following the experience of two elections. If further reform is judged necessary, consideration should be given at that time to introducing the single transferable vote for Scottish Parliament elections”.

As I have indicated, that revised system has not been implemented. The Calman commission perhaps read more into that and interpreted it as saying that in any event there would be a further review after two more elections—ie, after 2011. My colleagues who sat with me on the Calman commission will no doubt recall that we did not make any recommendations on the voting system as such because of the very recent Arbuthnott review, but also because there might have been a future review.

As I indicated in an earlier debate, specifically on another aspect of the electoral system and the regional list Member also standing in the constituency, the Government have stated their intention to consider what has been said by a review of the electoral system by both the Calman and Arbuthnott commissions. Indeed, in the Command Paper published alongside the Scotland Bill on St Andrew’s Day 2010, Ministers said that they recognised that the Calman commission,

“considered whether the electoral system for the Scottish Parliament should be reformed or devolved to the Scottish Parliament. Previously, the Arbuthnott Commission had reported in 2006 stating that there should be a review of the electoral system after the 2011 elections to the Scottish Parliament—the Government will consider this recommendation, taking into account the views of the new Scottish Parliament, following the May 2011 elections”.

Clearly, as indicated by the debate we have had this afternoon, there is support in a number of quarters for some form of review of the electoral system. However, the Government believe that they could take forward that review only with the full support of all parties in the Scottish Parliament, along with the benefit of the detailed consideration that this Government are committed to. I take the point made by the noble Baroness, Lady Liddell, that there is perhaps some nervousness about seeking to change the rules after they delivered a result that many of us did not like. That is a fair point. The noble Lord, Lord Browne, also made the important point that there are perhaps more important constitutional issues that we should focus on at this time, not least the fundamental question of Scotland’s place in our United Kingdom. Perhaps now is not the appropriate time to start a review of the electoral system. I have indicated that if there is that consensus to take it forward at some future time, we would be willing to consider it, but this is not the appropriate time to do so.

I think that we all share two views that were expressed earlier. First, I endorse what my noble friend Lord Forsyth said on the standing and importance of a Member of Parliament in his or her community. He said that those of us who have had the privilege to serve as Members of Parliament take very seriously that we represent the entire community and not just those who voted for us. That sense of representation and the privilege that follows those of us who have done that is important. That links into what the noble Lord, Lord McFall, said on the duty of all us to consider how as politicians—elected or not—and as a political system we can re-engage with the people who our laws affect. That will not be done just through a change to an electoral system. There are a whole host of things but it is something we would do well to remember.

For clarification, on the specific point raised by the noble Lord, Lord Foulkes, on Amendment 1, I repeat that we will see what consensus there is about looking at that. In the spirit of what I have said, I hope the noble Lord will withdraw his amendment.

Scotland Bill

Lord Browne of Ladyton Excerpts

Tuesday 6th September 2011 Lords Chamber

[Lord Browne of Ladyton]

My Lords, I am delighted to stand at this Dispatch Box for the first time, with the sound of the words of my noble friend Lord Gordon ringing in my head. He has treated us to 10 minutes of quite profound common sense.

I think I can reassure my noble friend—I am sure that the noble and learned Lord the Advocate-General will support me in this—and, indeed, the noble Viscount, Lord Younger, that there is no possibility of the Bill leaving this House with excise duty powers transferred to the Scottish Parliament or indeed any taxation powers that would contravene or raise the sorts of problems and concerns that have been identified. We can, at least at the beginning of this summing up, reassure Members of the House that that is not a possibility, though it may be part of the debate that we have.

When I agreed to do this, I had not imagined that I would make my maiden speech at the Dispatch Box at this time in the morning. However, it has been a privilege to be here. It is traditional to say that we have had a varied and informed debate when one is in this position, but it has genuinely been a privilege to listen to this debate. I regret that we were denied the forensic flourishes of the noble and learned Lord, Lord McCluskey, which I was looking forward to hearing, and I regret that my noble friend Lady Liddell could not be tempted to give us a deep and serious explanation of the Australian tax system. Despite that, there have been a number of very valuable contributions from all sides of the House. The depth and range of experience contained within this place in relation to Scotland is impressive and it has been reflected in the quality of this debate. Indeed, we heard from voices beyond Scotland. The noble Lord, Lord Wigley, and my noble friends Lord Morgan and Lord Soley contributed to the debate. I share the regrets expressed by the noble Baroness, Lady Linklater of Butterstone, that there was a lack of English voices here. I hope that the absence of those English voices was to leave room for the Scots, because there were so many that wished to contribute and we were restricted in the time that we had. However, I suspect that that is not the whole of the explanation. The issues we have been debating affect not just Scotland but the United Kingdom quite profoundly and they will not be resolved with the certainty and stability that many noble Lords crave unless there is a significant and informed contribution from the rest of the United Kingdom to try to settle them. I will come back to that in a moment.

Before moving on, I would like personally to express my gratitude to the noble Baroness, Lady Linklater of Butterstone, for her words of approval and support, giving credit to Donald Dewar, whom I had the privilege to serve as Parliamentary Private Secretary at just about—though not all of—the time that the Scotland Bill was passing through the other place. His name has been mentioned occasionally in this debate, but I know that there is a sense and knowledge around this House of the contribution that he made to the modern Scotland. It is a matter of great regret that he died prematurely and was not able to make the contribution that we all know he would have continued to make for many years, in Scotland and beyond.

I thank the noble and learned Lord the Advocate-General for his introductory remarks. This is not an easy Bill to make a Second Reading speech about, in a way that captures and retains the audience, but he introduced the comprehensive nature and complexity of the Bill well, and set the scene for the debate. I want to take this opportunity to thank him personally for the gracious and helpful way in which he and his fellow Ministers in the Scotland Office have extended the help of their Bill team to me, and to other members of our Front Bench, in order that we can be assisted in understanding some of the complexity of this legislation. We have had but a small reflection of that complexity in the debate that we have had tonight and it will unfold over the days of the Committee stage. That sense of continuing co-operation is characteristic of the whole process that started, as we have heard from noble Lords, in 2007. The process has been co-operative and transparent, with the discussion and testing of these issues through the Calman process and thereafter through the White Paper and the other documents, discussions and consultations. I am grateful to the noble and learned Lord.

Today he has heard speeches of support from all sides of the House, with one or two minor exceptions. In a sense, the tone of the debate has been summed up by the contribution of the noble Viscount, Lord Younger of Leckie, in which he gave qualified support to this legislation. I sense that there is quite a lot of qualified support around the House. That is a perfectly healthy position for a piece of legislation of this nature; it requires to be tested, teased out, explained and understood, but I am certain that the House will be persuaded to support it and send it back to the other place in substantially the same form as we received it. There are reasons why it might be important to do that, although we can have other debates.

The Opposition’s intention is to support the Bill, but we will of course scrutinise and review its contents in as much detail as necessary and, when appropriate, table amendments that we believe will enhance the Bill for the benefit of the people of Scotland. I gently chide the noble Earl, Lord Mar and Kellie. I understand his desperation to find something that he can claim as a Lib Dem contribution to the success of the Government, but he cannot have this Bill. As noble Lords have made clear from all sides of the House, this process, which started as an initiative of the Scottish Parliament on 6 December 2007, is owned by all of the devolution parties of this House—although not all the members of those parties. I see the noble Lord, Lord Forsyth of Drumlean, moving his head in a particular direction; it is not supportive of the remarks that I am making, and I understand that. The initiative was born in another time and we are now having to deal with it in changed circumstances, but that does not mean we should not make the best of this process to make a contribution to the ends that we see for the Scottish people.

With regard to the way in which Scotland is governed, it is important that we see this as a progressive step, or a series of progressive steps, to the opportunities that the Scottish Parliament has to govern for the benefit of the Scottish people. I hope that we will approach our debates in Committee by testing the legislation and asking all the difficult questions that we have heard rehearsed today and more, but always with a view to trying to make our contributions pass the test that my noble friend Lord McConnell posed for us—that is, “Is this for the benefit for the people of Scotland and, more broadly, will it be for the benefit of the United Kingdom?”.

There was support for the Calman process. Indeed, there was support for an independent review of the powers of the Scottish Parliament from all but one of the parties in the Scottish Parliament. I was Secretary of State for Scotland at the time when the Calman commission was set up and this report was commissioned. The commission’s terms of reference, to which a number of noble Lords referred, were the responsibility of the UK Government, particularly in consultation with the other devolution parties. It is no criticism of the Calman commission that it may or may not have done certain things. It did the job that it was asked to do and it did it in an exhaustive, painstaking, positive and engaging way. We have heard from the noble and learned Lord the Advocate-General, the noble Lords, Lord Selkirk, Lord Elder and Lord Stephen, my noble and learned friend Lord Boyd of Duncansby and the noble Earl, Lord Lindsay, about the care and detail that have gone into the process. I commend the Calman commission report to all Members of the House. Indeed, I also commend the report of the expert group which informed the decisions relating to financial provisions. Many of the questions asked about why decisions were made, why certain percentages are favoured rather than others, or where the evidence was to support certain conclusions, are contained in a very accessible form, both in the report of the Calman commission and in the evidence of the expert group. There are additional documents that have been published in the processes that had led to this Bill, and they also inform the debate, but I commend those two reports. I recognise that the commission was instructed in a different set of circumstances and it would be unrealistic not to admit that the decision of the Scottish Parliament and the election of May last year have changed those circumstances significantly. However, it does not follow from that that these recommendations or this legislation are irrelevant to the future of the Scottish people.

As regards scrutiny of these provisions, I share the concerns expressed by my noble friends Lord McAvoy, Lord Foulkes and Lord Soley, and by the noble Lord, Lord Forsyth of Drumlean, that this debate appears to have been pushed to the end of the day. It will be presented and perceived by some as having pushed Scotland to the end of the day and to the back of the minds of the Members of this House and this Parliament. Of course, those people will not have taken the trouble to consider the terms of the debate, the knowledge that has been revealed, or the level of scrutiny that is being applied to this legislation even at this early stage. It is a pity that this was done, and as my noble friend Lord O’Neill points out, on a day that Scotland’s football team played and won; this is perhaps the ultimate offence to the Scottish people. I trust that for a Bill of this importance we will not see a repeat of what happened in the other place when insufficient notice was given of quite significant changes to the Bill before Third Reading to allow them to be properly debated. I am sure I will be reassured by the noble and learned Lord, Lord Wallace, when he concludes the debate this evening, that this will not be the case.

I am pleased the Committee stage will take place when the maximum amount of information is available on how these provisions will be implemented, in particular the taxation provisions. I understand that at least two bodies in government are looking in more detail at the implementation and are resolving some of the issues that have been raised, such as the definition of a Scottish taxpayer. I think there is a joint Treasury or Exchequer group of some description and there is a high-level group of some description. I hope that in winding up the Minister will indicate exactly what stage these groups are so that we can judge whether there will be sufficient time to absorb their conclusions and to incorporate them into a debate. For a start, I would like to know if these two committees that have been set up have actually met, and if they have met, what their role is.

We devoted some time, though not an inordinate amount, to the issue of referendums. We have heard calls, variously, for a referendum on the implementation of these tax powers and for a debate on the provisions that are necessary for a referendum on the separation of Scotland from the United Kingdom. Indeed, at one stage we heard a contribution about the possible combination of these two referendums.

I look forward to the promised amendments from my noble friend Lord Foulkes of Cumnock and, perhaps, the noble Lord, Lord Forsyth of Drumlean, and others in relation to these issues so that we can tease out the necessary matters. When my noble and learned friend Lord Davidson of Glen Clova introduced the Opposition’s position on the Bill at the beginning of this debate, he indicated an interest in the legal issues associated with such a challenge. There is an important debate to be had. It will be a debate worth having, provided it is focused on the arguments for a 21st century Scotland within the United Kingdom.

I am conscious of the time but I want to make this point: it is very important that Members of this House pay significant attention to the speech that was made at Second Reading by my noble friend Lord McConnell of Glenscorrodale. There are Members of this House who have held office in both the Government here and the Government of Scotland, as we shall come to call it properly and legally when the Bill is enacted. However, my noble friend Lord McConnell is the longest serving Scottish First Minister. He has served in government with Members of this House and has significant experience and knowledge of Scotland. He exhorted us to approach this from the point of view of what is best for the people of Scotland. He exhorted us, in the context of the challenges that we face and the ambitions that we have, to retain the union; to provide the best for the people of Scotland in that diverse union; and to do so in the context of an argument that shows Scotland’s position in a diverse, modern United Kingdom, and that it is best for Scotland and the United Kingdom if it stays there.

I as much as anybody enjoy the cut and thrust of politics—taking on one’s opponents directly and attacking them—both in Scotland and in the United Kingdom. However, the message of the Scottish Parliament election in 2007 was that the Scottish people are no longer responding as they once did to that type of politics in Scotland. There are those of us who believe in the union and devolution, in the social and economic union that is the United Kingdom, and in all the positive things that were described in a generic sense in contributions from across the House. Those of us who believe in all those things need to develop a narrative that sets them in a modern 21st century Scotland so that we engage with the Scottish people in a way that says, “We have a message for your future”. It should not just be a message that stops with, “Certain people are doing something with the constitution of your country that we do not think is in its best interests”.

We have the beginnings of such an argument. We have heard it set out in parts of this debate in contributions from all sides of the House. It is as incumbent on those of us who believe in devolution and that Scotland’s future lies within the United Kingdom to spend time developing those arguments in the context of the Bill and its powers, no matter how challenging that might be, as it is incumbent on us to point out the errors and flaws in the approach of the party that wants to separate Scotland from the United Kingdom. It is only if we get that combination right that we will succeed in what we seek to do for the future of Scotland.

I intend now to wind up, and I apologise to all who have contributed to this debate in such an informed, witty, entertaining and engaging way. There has been insufficient time today, but we will have plenty of time in Committee to go back and pick up on some of these issues, and to attribute to those who have made a contribution to the debate the rightful acknowledgement that they deserve. Whatever one’s view of devolution, the Scottish Parliament has become a permanent fixture in Scottish political and civic life. It is here to stay. Secondly, Calman has done us a great favour in spelling out why this is the case. Devolution has been good for Scotland and is settled with the Scottish people. The cross-party consensus in Scotland, with the depressing and repeated exception of the SNP for some alleged reason of principle that it abandons when it suits it and picks up again when it does not, has been sustained over last year’s election and will continue throughout the passage of this Bill.

We on this side of the House will of course carefully scrutinise this Bill as the tenor of today’s debate reveals that there are a number of very difficult questions that need to be asked and, more importantly, need to be answered. Your Lordships’ House is rightly respected for its approach to the scrutiny and review of legislation, and that approach will continue for this legislation. In Committee we will look closely at the individual clauses. We will pick them apart and put them back together again, and we will explore what further measures can be added to this Bill for the benefit of the people of Scotland. On this side of the House, the test that we will apply to each and every clause, as set out by the Scottish Parliament when it initiated this process in 2007, is: does it enable the Scottish Parliament to serve the people of Scotland better, to improve the financial accountability of the Scottish Parliament, and to continue to secure the position of Scotland within the United Kingdom? It is on this basis that we support the Scotland Bill and we look forward to debating it further in the coming months

Parliamentary Voting System and Constituencies Bill

Lord Browne of Ladyton Excerpts

Thursday 20th January 2011 Lords Chamber

[Lord Martin of Springburn]

I will take the noble Lord’s word for that.

If the boundary commissioner was to look only at numbers and close proximity, there could be some strange notions because places such as Campbeltown are geographically closer to Ballycastle in Northern Ireland than to Glasgow and other parts of neighbouring constituencies.

I have been neutral for 10 years. When I took the great office of Speaker of the House of Commons, I gave up my membership of a political party, as other Speakers did. Being in a political party is an enjoyable experience. It is not only about political belief, but friendship and kindredship, going to conferences and meeting friends, who are like family. I have given that up, and I know that people would argue that I was in the Labour Party at one time—I do not deny that, and am proud of the membership that I had—but I am arguing for a constituency that, to my knowledge, has never been represented by a member of the Labour Party. In fact, one of the great offices of state—that of the Secretary of State for Scotland—was performed by Michael Noble, who was a Conservative Member of Parliament for Argyll. As a Peer, he then served this House so well after he left the House of Commons—he was a Chairman of Committees—as did the late John Mackay, who had also been the MP for Argyll.

A lovely lady whom we all got on with was Ray Michie, who served the House of Commons so well and also came to this House and served so well here. She used to regale us with the stories of how, when she had to go and see her constituents on some of these islands, she had to get on to an old trawler ship and share the accommodation with cattle.

[Lord Browne of Ladyton]

As an aspirant politician in 1992, I had the temerity to take on Ray Michie. When I took over the candidacy, the Labour Party was fourth of four parties in the constituency. When I handed it on to my successor, we were fourth of four parties in the constituency.

I endorse all that my noble friend has said, but I could not pass up the opportunity to pay tribute to Ray Michie and, in particular, to her husband, who campaigned for her assiduously during every election by going round the constituency, knocking on doors and encouraging people not to vote for her so that he would not have to make his own tea as she was absent in London. He charmed constituents into voting for her.

[Lord Martin of Springburn]

I agree with the noble Lord. She was a lovely lady.

Of course, there is fantastic compensation in a Member representing a constituency like Argyll. My fondness for the music of the Highland pipes comes in part from the fact that there are so many tunes, Strathspeys, reels and marches that are named after the romantic places of Argyll and the beautiful islands there.

At the moment, the seat is represented by Alan Reid. I have not spoken to him recently, but I received a note from him in which he encouraged me to highlight my amendment. What is significant is that, when I met Alan, serving in the House of Commons as Speaker, I was a Member of Parliament in my own right. Every Thursday I headed north, as did every other Scottish Member of Parliament. Many a time we shared the rooms at Heathrow airport waiting for a plane. I used to say to the officials of the House of Commons when they annoyed me on a Thursday, “Leave me alone. The call of the north is coming upon me. I don’t want to be bothered”; the only Thursday that I did not leave London was in preparation for the Cenotaph. My duty in that travel was to attend to my constituency in Glasgow North East. I was conscious that, when I would meet Alan at the airport—we took the same plane—within half an hour of my arriving at Glasgow airport I could be at a constituency meeting, yet he had a journey of three hours to get to his constituency. After travelling from Westminster to Heathrow, he would need to fly to Glasgow and then drive for three hours more to get there. I could easily have been at a surgery or attending a parents’ night at a local school while he was still travelling.

There is unfairness in that. With a vast area of mainland, the Mull of Kintyre, Oban and all the other areas and then out to those beautiful islands that I have inadequately described, a boundary commissioner would then have to go landward, further into Scotland, to get the numbers up. That would be extremely unfair on any Member who had to take in Argyll. I know that the term “special case” has been bandied about for several days now, but Argyll should be made a special case.

Parliamentary Voting System and Constituencies Bill

Lord Browne of Ladyton Excerpts

Wednesday 19th January 2011 Lords Chamber

[Lord Wallace of Tankerness]

There are two points here. First, it has been recognised in earlier debates that this Boundary Commission review will be on a much shorter timescale than many previous Boundary Commission reviews, which underlines the point as to why it is not possible for us to move the date forward continuously. For completeness, I should note that the English Boundary Commission’s fifth periodical report about projected electorate changes, which were published in 2007—and there may be an amendment at some point on these issues—said about estimated electorate changes that it was sometimes asked to take into account projected growth or decline, but usually growth, in the electorate. The commission said that such projections were considered to be speculative and that it did not have regard to them, but that when it was satisfied that growth or decline would occur in the very near future—such as in the case of a large housing development nearing completion—it felt able to take such factors into account. There was some effort, but it was based on substantive grounds and not on the sort of estimates that attend population figures. I hope that the noble Lord will withdraw his amendment.

[Lord Browne of Ladyton]

I am very grateful to the Minister for giving way. He has been extremely indulgent of these interventions, but they are very helpful if they discourage people from making speeches about issues that he has addressed. My question relates directly to the last point that he made, which is at least some recognition that there will be population movements, which must be accommodated in drafting constituency boundaries in anticipation. My understanding of the Bill is that even that minor recognition of population changes will not be possible if the Bill becomes law. Am I correct in that understanding?

[Lord Wallace of Tankerness]

If I have got it wrong I shall say so, but it was not speculative, which is what the Boundary Commission is invited to do. It has indicated that if it comes up at the stage of the representations in the consultation, it might be able to talk about some hard, factual and practical changes. I shall confirm, I hope sooner rather than later, that that is possible.

Parliamentary Voting System and Constituencies Bill

Lord Browne of Ladyton Excerpts

Tuesday 18th January 2011 Lords Chamber

[Lord Elystan-Morgan]

My Lords, it is not as if I had any intention of wishing to be included in that distinguished company, but I have a small point which may be helpful. I greatly welcome the attitude of the noble and learned Lord. This is one of the sanest, fairest and most common-sense amendments that we have had in this context. No doubt the Minister believes that arithmetical consistency is extremely important. I totally accept his sincerity, but it is not the case that it can be achieved. It can be achieved only if there is a register that is perfect in content. But you do not have such a register. It is inaccurate, possibly to the tune of 3.5 million. You may be thinking that you are aiming at a target through telescopic sights, and you are, but there is a kink in the barrel. Arithmetical consistency and total correctitude are simply not achievable.

[Lord Browne of Ladyton]

My Lords, I crave the indulgence of the Committee for two minutes to make one simple point to the Minister. When he goes away to consider this, will he take with him the evidence from Scotland of the application of almost identical rules to those which he seeks to introduce? In 2007 an almost identical set of rules was applied to the revision of the Scottish Parliament boundaries. The Boundary Commission adopted a hierarchy that was almost exactly the same that the Bill imposes on the commission. As the noble and learned Lord knows, the result of those revisions was a set of provisional proposals that caused outrage across Scotland. There are at least 10 reports of local public inquiries signed off by sheriffs principal which criticise the effect on communities of that rigidity.

Finally, I shall repeat just three sentences from the West of Scotland regional inquiry. They are the words of Sheriff Principal Kerr when he rejected the provisional recommendations and opposed the degree of flexibility that the Boundary Commission had not. He said:

“I take the view that the Boundary Commission in formulating their proposals for the present review in the West of Scotland allowed Rule 2 to predominate unduly in their thinking”—

which is exactly what the Bill will do since rule 2 imposes parity in numerical terms on the electorate—

“with some consequences which I would describe as unnatural in their failure to have sufficient regard to the geography and social composition of the areas and populations with which they were dealing. The conclusions at which I have arrived in this report after seeing and hearing local reaction at the inquiry may go some way towards redressing the balance in favour of matching political constituencies to the realities of life in this part of Scotland”.

There are 10 of these decisions, and they are a formidable quarry for those in support of local public inquiries. They may be used later in the debate, but in the mean time I urge the Minister, for whom I have the most enormous regard, as he knows, to take them away and look at them when considering the proposal for more flexibility in this Bill.

[Lord Falconer of Thoroton]

My Lords, on the basis that the noble and learned Lord has signalled that he accepts the broad approach that I have suggested, I am more than happy to withdraw the amendment.

Parliamentary Voting System and Constituencies Bill

Lord Browne of Ladyton Excerpts

Monday 13th December 2010 Lords Chamber

I say to the coalition, “Please sit down again and take stock”. Are we on the right path? Could we make amendments that would produce a better Bill, better legislation, better procedure, a better question, a better campaign overall and more chance of seeing something come out of Parliament that will satisfy the demands of the electorate?

[Lord Browne of Ladyton]

My Lords, despite the lateness of the hour, I rise with some enthusiasm to support the amendment moved by my noble friend Lord Foulkes of Cumnock. I thought that he made a powerful case for why it is a mistake to have this referendum poll on the same date as the Scottish parliamentary elections. In doing so, he did not draw on nearly all the arguments that exist, as has been apparent from other contributions.

I am struck by the contribution of my noble friend Lord Campbell-Savours allied to the contribution of the noble Lord, Lord Hamilton. From the different perspectives of reform, I thought that they made complementary cases on why the Government should be persuaded to take more time over this process and to get it right. If we are to get a decision about the way in which we elect the House of Commons for a generation or more—or, indeed, for ever—it does not seem unreasonable to ask for time to think about the full implications of the decision that we are making and to test that even by discussion among parties or, as the noble Lord, Lord Campbell-Savours, suggests, among those who broadly favour reform. Furthermore, I thought that the analysis of my noble friend Lord Lipsey of the effect of the coalition’s proposal was deadly accurate.

I have been listening to debates in Committee on this issue and have been struck by the number of contributions supporting contemporaneous polls from people who, I have the sense, have not done much campaigning to encourage activists and electors to engage in polling. They may well have organised campaigns from the centre, but not out there in the streets as I have done time and again. It is challenging to try to encourage activists to go out with you often in quite inclement weather in Scotland, even at that time of the year, to knock on hundreds of doors, to spend hours and hours on doorsteps engaging with people and persuading them that they should come out during a particular window of opportunity. To ask people to do that and, at the same time, to support a campaign that involves them working with those whom they are campaigning against will be almost impossible. I know from the activists whom I have tried to engage and have worked with successfully on numerous occasions that that is a difficult thing to do. This should not be complicated any more than it needs to be.

I have already contributed to this debate and I do not propose to rehearse all the arguments that I made when the Committee considered this issue before, but I must say today that I have been reassured that not only did we win that argument—although we were unable to persuade the coalition Government to accept the consequences—but it seems that, subconsciously, we have persuaded more members of the coalition than we thought. For example, I heard the noble Lord, Lord Tyler, adopt exactly the argument that he opposed days ago and earlier today in his opposition to 16 and 17 year-olds having the vote. If he is not consciously aware that he has absorbed the argument, subconsciously his political acumen is telling him that there is something in it, because he repeated the argument.

Earlier, I suggested to the Committee that one reason why we should not have the Scottish Parliament elections and the referendum on the same day is that the London-centric media will dominate the debate and drown out the voices of Scottish politicians as they try to persuade people to engage with the issues that are important to them concerning who forms the Scottish Government for the next four years. I remember that argument being pooh-poohed, but I heard it repeated back to me today by the noble Lord, Lord Maclennan, as a justification for why we can be sanguine about the effect that having these elections on the same day will have on the 15 or 20 per cent of the vote, concentrated in London, who will not be part of a contemporaneous process. We are told that the London-centric media will be strong enough to counteract the differential turnout. Because I have done it myself, I admire the ability to use an argument that one opposes in a different set of circumstances for a different purpose. I do not admire the ability to use an argument that one opposes on a different occasion in the same set of circumstances. We seem to be persuading people much more than we thought on these Benches, from the results that we are having with the coalition.

However, I want to major on another point, which concerns respect. Having the referendum poll on the same day as elections to the Scottish Parliament shows a distinct lack of respect for the Scottish Parliament. The proposal has created in Scotland a unique coalition of opposition. That coalition of opposition was reflected in the views expressed and the vote cast in the Scottish Parliament itself. The Scottish Parliament, the electoral body that will have an election on the same day, has said to this Parliament, “Do not do this to us. Do not impose this dichotomy on our electorate on the same day and please do not do it against the background of the experience that we had in 2007, when a similar set of circumstances were created”.

I read that the Parliamentary Under-Secretary in the Scotland Office dealt with this argument in the House of Commons by saying that he had no response to that debate or that decision because not one argument was rehearsed in the Scottish Parliament debate that had not been rehearsed in the other place or in this Parliament and that therefore he did not need to take cognisance of it. That is disrespectful in the extreme and we in this place should be above that sort of argument.

I believe that the coalition is required to give Scottish parliamentarians, who have expressed their view in that way, an explanation as to why they are not listening to them. They particularly require to do that because this same coalition Government have just published a Bill that accepts a recommendation of the Calman commission that will give that Parliament the responsibility for organising its elections once that Bill becomes an Act. The Government have said, “In principle, we accept the argument that the Scottish Parliament should be a sovereign body in relation to the conduct of its own elections”. That is now printed in a Bill that they hope to persuade this House and the other place to support. At the same time, they are saying, “We will ride roughshod over your recent exercise—potentially—of that right by imposing on you a coincidence of polls that you say you do not want”. What is the coalition Government’s position?

[Lord Maclennan of Rogart]

I do not see any contradiction between giving the Scottish Parliament sovereignty over its own electoral matters and the right of this Parliament, which is sovereign over United Kingdom matters, to decide how referenda that apply throughout the United Kingdom should be decided. To abdicate that principle is not a matter of disrespect but a recognition of the principle of subsidiarity. That is deeply rooted in our constitutional understanding of devolution and membership of the European Union. We are entitled to take decisions in this Parliament that govern how this Parliament’s membership will be arrived at. We do not defer to Europe on that issue or to any regional or other body in this country on these matters.

[Lord Browne of Ladyton]

I am grateful to the noble Lord for his intervention because he sets the context for the argument that I am making. I am not making a legalistic argument. As he knows, I am well versed in the legal relationship between the devolved Parliament and the United Kingdom Parliament and was close to the process that delivered that settlement for the people of Scotland. I agree entirely with him in a legalistic sense but, if I understand his argument, he is now saying from the Liberal Democrat Benches that the Liberal Democrats’ attitude, or at least his attitude, to the Scottish Parliament is: “We have known the date of your election for four years, but we want that date. You can move”. If the implication of the noble Lord’s argument is accepted, that will at a stroke in Scotland undermine the only reason that we have heard articulated in this Chamber for why the coalition Government want to have the referendum on the same day as the Scottish Parliament election.

If I understand the noble Lord, he is saying, “We want to do these two votes on the same day to maximise the turnout, but if you are right”—and we have to accept that they are closer to this than we are—“that this will do a disservice to your election, feel free to move your election. Of course, we have known about the date of that election for four years, but the lack of respect that we have for you is such that you can move over and we will take your date, even if we don’t get your turnout”. That is not the argument that this House, this Parliament or, indeed, the coalition Government should be putting before the people of Scotland. The people of Scotland have spoken through their Parliament and said, “Please do not do this to us. Our electoral system and Parliament are important to us. Do not do this to us”. It seems to me, for all the reasons that have been rehearsed, that they create an argument that is in favour of the objective that the noble Lord wants to achieve. It does not seem to be unreasonable to ask the coalition Government to accede to that request.

--- Later in debate ---

[Lord Falconer of Thoroton]

If the noble and learned Lord, Lord Mackay of Clashfern, had drafted these amendments, I anticipate that he would have drafted them differently as well. On the face of it, this drafting confronts you with subsections (2), (3) and (4) comprising a compelling combination. Amendment 39A says:

“If any of the elections … are not held on the same day”,

yet subsections (2), (3) and (4) compel them to be on the same day. I completely understand what the noble and learned Lord, Lord Wallace of Tankerness, is seeking to achieve and I do not seek to stand in his way. However, his obdurate refusal to consider doing it the obvious way—namely, inserting at the beginning of subsections (2), (3) and (4), “if they are on the same day, they will be have to be combined”—causes me confusion. I earnestly ask the noble and learned Lord to ask his officials politely and respectfully whether it would not be easier to use the same wording as that used in subsection (1) and get rid of the confusion.

[Lord Browne of Ladyton]

As a mere junior counsel in the face of two of the most eminent senior counsels this country has ever seen, I enter this debate with great trepidation. I am extraordinarily grateful to my noble and learned friend Lord Falconer because the penny has dropped for me. The amendment that the Government propose becomes effective only if the polls do not take place on the same day. As long as the Bill stands as it is drafted, they can take place only on the same day.

[Lord Falconer of Thoroton]

The noble Lord, Lord Browne of Ladyton, is right and I refer him to the comparison between subsections (1) and (2), (3) and (4). However, I have made my point and I earnestly ask the noble and learned Lord, Lord Wallace of Tankerness, to consider taking the government amendment away and coming back with a measure on Report to achieve his aim, should Clause 4 still remain part of the Bill after the Committee stage.

I wish to address what the noble and learned Lord rightly describes as the political aspects of this. Clause 4 is included to allow for the combination of polls. It is intended to ensure that a variety of elections can take place together. As a matter of principle, we think that that is the wrong approach to that issue. There is no dispute in any part of the House regarding the importance of the referendum. I cannot recall a referendum over the past 150 years—it is more a case of reflecting on history than personal recollection—which concerned the voting system. I think most people in this House would agree that we should hold referenda only in relation to very important constitutional issues. The referenda held since the Second World War concerned: the partition of Ireland; staying in the European Union; the 1978 referendum on devolved Assemblies for Wales and Scotland; and the 1998 referendum on devolved Parliaments or Assemblies for Wales and Scotland—all very important issues. As far as I am aware, each of those referendums has taken place alone, without there being any other poll on the same day. That is a sensible course whereby this country’s approach to referenda is that you have them only when there is an important constitutional issue. We heard from my noble friend Lord Lipsey and the noble Lord, Lord Hamilton, who both said how important the issue is.

We also have the report from your Lordships’ Select Committee on the Constitution, which is a cross-party organisation that spoke unanimously on the issue. The committee cited evidence that the effect of having elections on the same day as a referendum is that the referendum debate gets swamped by the election of individual people. If you look at America, where frequently referenda take place on the same day as elections—such as those in November this year—you find that no one pays much attention to the referenda and everyone pays attention to the election of individual people. If the Select Committee of this House is right, you are in danger of the referendum question being swamped by the election of people in the three—or even four, if there is also a mayoral election—other elections going on at the same time.

Why is this being done if it is such an important issue? Everyone in this House wants the constitution properly to be given effect to. I do not want there to be a sense of illegitimacy about the result. Whatever view one takes about this referendum, one wants it to be decisive—decisively in favour of either first past the post or the alternative vote system. The result could be close, but you would want a good turnout and the sense that the question had properly been addressed.

This is the second national referendum in 120 years. It is the first one to affect our electoral system—the one that will make people have a view about whether they trust their electoral system. This Government, as I understand it, justify bringing the referendum together on the same day as the other elections when there is formidable evidence that it leads to the question being swamped. The Government justify that on the basis that it will save some money. Money is important, but it may be that the legitimacy of our constitution is more important.

This is a fundamental point of principle, and it is not too late for the Government to change their position. I should have thought that everyone on the government side, whether they are for or against a change in the electoral system, would want the result of the referendum to be something that the country has confidence in. What we are doing on this side is, in effect, reflecting the arguments of experts who say that having the referendum on the same day as other elections is not a good idea. It deprives the result of legitimacy.

Scottish Parliament (Elections etc.) Order 2010

Lord Browne of Ladyton Excerpts

Thursday 9th December 2010 Lords Chamber

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, the draft order consolidates the rules for the conduct of the Scottish Parliament elections and ensures that the accepted recommendations from the Gould report will apply for the May 2011 election. The draft order has been available to electoral administrators and political parties since it was laid in Parliament on 25 October, more than six months ahead of the 2011 election. Indeed, an earlier version of the draft order was circulated to electoral administrators in April and to political parties in June. Most of us in this House who are still here will recall that more than 180,000 votes were lost due to rejected ballot papers in the 2007 Scottish parliamentary and local government elections. It was agreed across the parties that that is totally unacceptable in a modern democracy and, understandably, there was widespread public outrage at the time.

Mr Ron Gould, who was commissioned by the Electoral Commission to review the 2007 Scottish elections, concluded that six main factors contributed to confusion and to the level of rejected papers. First, he identified many problems on the design of ballot papers. Secondly, a new proportional voting system for local government elections had been introduced and voters were confused by combined elections that used two different electoral systems. Thirdly, there was poor co-ordination of the publicity campaigns of the Electoral Commission, the Scottish Government and others. Fourthly, Mr Gould identified problems caused by electronic counting. Fifthly, he found that there was fragmented and late legislation and a lack of involvement from electoral administrators in the legislative process. Sixthly, he said that there was a lack of co-ordination within the electoral community and a fragmented approach to planning.

There is no doubt that public confidence needed to be repaired after the problems experienced in 2007, but I believe that a successfully administered UK general election in Scotland earlier this year will have gone some way towards doing that. I am pleased to say that the Scotland Office has continued the work started by the previous Administration on implementing those Gould recommendations that were accepted by the Government at the time.

In relation to Gould’s recommendation that there should be a six-month cut-off period for changes in the law governing the conduct of elections, we have made sure that electoral administrators and political parties are well versed in the changes to legislation well in advance of May 2011. The target date of 5 November for making the order was always going to be challenging for whichever party won the recent general election. However, the projected date for making the order is still considerably earlier than at the previous Scottish Parliament election, for which the relevant order was made less than two months before the poll.

The draft order applies to next year’s election the Gould and Scottish Affairs Committee recommendations that were accepted by the previous Government. I accept that the draft order is large, so I will focus on the main changes since 2007. However, before doing so, I want to refer to a correction slip that Members may have seen associated with the order. The correction slip makes a number of typographical corrections to the instrument that will become part of the final order for printing if it is approved by Parliament.

It is also appropriate to comment on the four points on the order raised by the Joint Committee on Statutory Instruments. Article 2 defines “European Parliamentary Election”, although that term is not used in the text of the order. Rule 20(3)(a) in Schedule 2 includes within the minor errors in nomination papers that returning officers can correct,

“errors as to a person’s electoral number”.

However, unlike the nomination papers for election to the other place, the nomination papers for Scottish parliamentary elections do not contain proposers’ electoral numbers, which renders the reference unnecessary. Both those errors, while regrettable, have no effect on the operation of the order. The Scotland Office will ensure that returning officers are aware that the reference to electoral numbers can safely be ignored and the unnecessary provisions will be removed at the first suitable opportunity to amend the order.

The committee also highlighted Article 3(1), which deals with disregarding late alterations to the register of electors, and Article 4(5), which deals with the effect of alterations to the register where there has been an appeal against a registration officer’s decision. Those provisions have been in substantially similar form in previous versions of the order since 2002 and, so far as I am aware, have not prejudiced voters or the effective administration of previous elections. On reviewing the articles in light of the committee’s comments, we are of the view that there is an overlap with the provisions of the Representation of the People Act 1983 that renders them largely unnecessary. Unfortunately, those points were not raised until after the draft order had been considered by the Electoral Commission and had been laid.

We propose proceeding with the order in its current form and will revisit the provisions once we have had the benefit of consultation with the Electoral Commission and other interested parties. Since the equivalent provisions in previous orders have apparently not caused difficulty for voters or electoral administrators at the elections in 2003 or 2007, we do not anticipate there being any difficulty with the provisions being made as drafted.

[Lord Browne of Ladyton]

I thank the noble Lord for giving way. Before he moves too far away from the issue of defective drafting, perhaps I may raise a point with him. As he knows, I lived through part of this process in government because I became Secretary of State after the 2007 election and received the Gould recommendations and the Electoral Commission report. I accept entirely what the Minister says about the errors having little, if any, effect. My concern is that, to others, such errors may appear to show a consistent inaccuracy in the machinery for dealing with these issues. The Minister will not be able to check this now, but I refer him to the observations of his right honourable friend Mr Alistair Carmichael, who was the shadow Secretary of State for Scotland when I reported to Parliament on the report. Mr Carmichael suggested that history revealed that the electoral machinery that was servicing elections in Scotland was not fit for purpose. I am concerned that dismissing these errors in this way does not draw Ministers' attention to what may be a fundamental systemic problem in the machinery that is in danger of repeating the previous problem.

[Lord Wallace of Tankerness]

I hear what the noble Lord says. I could not quite remember where he was in the chronology of the Gould report, but he has now confirmed that he was the Secretary of State who received the report. The point that he makes is perfectly fair. However, the errors were spotted only very late in the day and have been drawn to the attention of the Joint Committee on Statutory Instruments. They were not spotted by the Electoral Commission when it looked at the draft order, nor by the electoral officers to whom the drafts were sent out, either on this occasion or on two previous occasions. That does not excuse the fact that the errors are regrettable and must be looked at. The point is fairly made that perhaps such errors flag up the need to have a thorough-going review of the orders. That said, as the noble Lord acknowledged in his intervention, there is nothing in the draft order that should impair in any way the operation of the elections in May next year. As I have indicated, we will draw the matter to the attention of the Electoral Commission for further consideration. Indeed, I think it has been suggested that the orders could possibly have been withdrawn and relaid. However, given the statutory obligation to consult the Electoral Commission, timing was one of the key issues that Mr Gould’s report flagged up. Therefore, it is important that we proceed with the draft order, while acknowledging, with regret, the errors that exist.

I turn to the substance of the draft order. The draft order consolidates legislation on the conduct of Scottish Parliament elections, so that the majority of rules governing those elections are now in one document, which we hope will make it easier for electoral administrators and political parties to use. The draft order sets out for the 2011 elections that we will return to a manual count of ballot papers for both the Scottish Parliament constituency and regional elections. There will be separate ballot papers for the constituency and regional votes, unlike in 2007, when both the constituency and regional votes were on a single ballot paper. Registered party names must be used on ballot papers and the design of the ballot paper follows the principles set out in the Electoral Commission’s publication Making your mark—Good practice for designing voter materials: guidance for government policy-makers.

There will be a longer timetable for running the election—increased from 21 days to 28 days—and, to accommodate administrative demands of increased postal voting, there will be a longer period between the close of nominations and the date of election, with an increase from 16 days before the poll to 23 days. The deadline for registering to vote by post and the earliest time that postal votes can be issued is still 11 days before the poll. The longer period between close of nominations and the date of election will help to accommodate the increased demand to vote by post. Once all the names of all the candidates are known, ballot papers can be printed without any further delays and sent out immediately after the deadline for registering for a postal vote has passed. For consistency, we have brought the control of donations to candidates and limits on candidates’ expenditure into line with the principles set out in the Westminster rules.

Apart from the consolidation of the 2008 and 2009 amendments to the 2007 order, the main new changes that have been made are: new requirements for the review of polling districts and places; the application to candidates at Scottish parliamentary elections, other than party list candidates, of the regime for control of donations to candidates that applies to UK parliamentary elections; limits to the expenses that may be incurred by or on behalf of candidates, other than party list candidates, in the pre-candidacy or so-called long campaign period before a Scottish parliamentary general election; revised requirements for candidates’ returns as to election expenses; revised requirements for the information that has to appear on election publications; an increase in the minimum period between the dissolution of the Scottish Parliament and the day of poll from 21 days to 28 days, which reflects the increase in the overall timetable for Scottish Parliament elections recommended in the Gould report; and provision for electoral registration officers to supply returning officers and other persons or organisations with a consolidated version of the register that takes account of any alterations, as opposed to having to provide a copy of the original register and individual copies of the notices of alteration. There is no longer to be a separate timetable for by-elections.

In addition, the draft order provides for: minor errors on nomination forms to be corrected by either the constituency or regional returning officer; grandparents or grandchildren to assist a person with disabilities to vote at a polling station; a requirement on the voter to sign the tendered votes list; the responsibility for the storage of election documents to be transferred from sheriff clerks to constituency returning officers. The provisions on the death of a candidate during the election period have also been revised. Changes have been made to what information on Members should be entered in the Scottish Parliament’s returns book and to restrict the availability of the returns book for public inspection to the life of the Parliament or to such later date as the Presiding Officer of the Scottish Parliament may direct. The electoral registration officer is now required to inform people that they have been appointed as a proxy and of the length of their appointment.

The draft order provides for limited access to, and for the supply of copies of, absent voting records, such as the postal voters list, for candidates, political parties and elected representatives as well as for public inspection of those records under supervision. The draft order allows the returning officer to determine which of a candidate’s proposed agents are to be appointed for the purpose of attending the postal voting proceedings if the list submitted by the candidate contains more names than authorised by the returning officer.

As Members of your Lordships’ House know, the Government wish to proceed with the referendum on the UK general election voting system on 5 May next year. The Bill dealing with that is currently under consideration in your Lordships’ House—indeed a number of noble Lords have participated in those debates. On Monday, your Lordships’ House rejected an amendment that would have prevented the referendum poll from taking place on 5 May 2011, when the elections are scheduled.

In closing my introductory remarks, I wish to make reference to the Scotland Bill, which signals the Government’s commitment to implement the proposals contained in the Calman Commission on Scottish Devolution, including the recommendation to devolve responsibility for the administration of elections. Indeed, no doubt the comments made by the noble Lord, Lord Browne, will be taken into account by those who administer elections in the future. The Scotland Bill was introduced in the House of Commons on 30 November, but it is clear that the Bill will not receive Royal Assent ahead of the May 2011 elections.

Of course, not all of Ron Gould’s recommendations were for the United Kingdom Government to act on; some of them were for the Scottish Government, the Electoral Commission or, indeed, for electoral administrators to implement. I hope that this House is reassured that the draft order will ensure that we take the necessary steps recommended by Ron Gould—accepted and adopted by the previous Administration and incorporated into the draft order—and ensure a successful election in May 2011. I commend the order to the House.

[Lord Browne of Ladyton]

My Lords, I support and welcome this order, despite the defects. I am grateful to the Joint Committee on Statutory Instruments for its sixth report and the work it has done in identifying these defects. Together with other Members of your Lordships’ House, I received a letter from a man who has been described in the other place as an SNP lawyer. It contains a briefing that sets out a number of points relating to drafting in areas where this order could be improved. I do not support the general thrust of the argument that we should have taken this opportunity to go beyond consolidation of the legislation and gone into substantial revision in interpreting Mr Gould’s thinking and changing parts of the existing legislation. That would have involved the whole scope of consultation which was not possible in the time that was available. I am pleased that the coalition Government have continued the work that was started under the previous Government—and indeed that I started as Secretary of State. I welcomed Ron Gould’s recommendations in the main, although I did not welcome or accept all of them. I am pleased the coalition Government are setting about the painstaking and difficult work of implementing those recommendations.

I cannot avoid making one or two points because I think they have to be on the record. As I have said, I was the Secretary of State who received Mr Gould’s report via the Electoral Commission. I have to say that the environment in which that report was received was unedifying in many ways. Many people in Scottish politics were trying to avoid responsibility for what had happened in May 2007, and there was one particular pretty appalling attempt to load all the blame onto one individual. I will come back to that in a moment.

The Gould report, read properly, did not reflect well on Scottish political parties, or on the machinery that existed for conducting elections. It clearly was not able to accommodate the level of complexity that it had imposed upon itself by decisions and was not able to conduct the elections on the day—the joint elections with complicated ballot papers—in a way that ensured that everybody who turned up and properly presented themselves could vote. That was a collective failure, but there were many people who were scattering to the winds and re-writing history to avoid their responsibility for that time. However, problems in the machinery were identified, and I think that those problems were shared by all. I do not exclude the Electoral Commission or any of the other organisations, individual returning officers or some local authorities; everybody bore a share of that responsibility.

--- Later in debate ---

[Lord Browne of Ladyton]

My Lords, I am significantly disappointed in the Minister, because I set exactly for him where the trap was and he walked right into it. In my view, it is entirely inappropriate to edit this man’s words. They have to be read in their entirety. The debate about his recommendations was bedevilled by the editing of his words, sometimes down to parts of paragraphs in order to make points. This man is an expert. He reported in full. He wrote a memorandum, every word of which I am sure he pored over, to the Scottish Affairs Select Committee. In the sentence immediately before the one that the noble and learned Lord chose to read, he clearly made the point that if a referendum was conducted at the same time as an election, it would overshadow the election, and that would not be an appropriate thing to do.

That is the argument that I make. Of course it is possible to conduct these two mechanisms at the same time. Of course it is possible for Scots to get their brains around putting Xs on different bits of paper in the right order. The point that he makes, which is consistently ignored, is one that has been made repeatedly to this coalition Government: they are doing a disservice to the Scottish Parliament, to the Scottish people and to their election by creating an environment in which another issue will overshadow that election. That is the point that he makes and the one that needs to be addressed.

[Lord Wallace of Tankerness]

I do not think that I walked into any trap; I acknowledged that Mr Gould had said that he would prefer a separate date.

I ask the noble Lord to reflect that the first election to the Scottish Parliament in 1999 was held just a matter of weeks after the NATO engagement in Kosovo. That issue dominated much of the election period. Indeed, he will no doubt recall the leader of the Scottish National Party starting the election campaign by saying that it was error of some proportion—I think he said that it was an unpardonable folly. That was a huge issue that dominated the news, but no one suggested at the time that it detracted from the proper discussion and debate about the issues that the new Scottish Parliament was going to debate.

The noble Lord will also recall that in 2003, some six weeks before the election, under the leadership of his right honourable friend Mr Tony Blair, this country invaded Iraq. The noble Lord supported it; I did not. Nevertheless, it was an issue of considerable importance—neither of us would disagree with that. The whole invasion campaign dominated the period of the Scottish election campaign. I do not think that anyone suggested that debates on the issues that the Scottish Parliament was responsible for, be that health, education, transport or local government, were in any way impeded and that politicians did not engage in those debates as they went to the hustings in the May 2003 election.

I suspect that, by comparison, however important we may think a referendum on the alternative vote system for the House of Commons is, in my view that does not compare in gravity with the invasion of Iraq. I have no doubt that when it comes to the lead-up to the election, the people of Scotland will be able to distinguish clearly between the issues involved in the election of Members to the Scottish Parliament and the issue that they will be asked to address of how the other place should be elected in future.

The noble Lord seemed to suggest in his remarks that it was a constitutional outrage to link two polling opportunities together. He will no doubt recall, or maybe he does not, that in May 1998 the Government, of which I suspect he was not a member then but was subsequently a member, actually combined the referendum on the London mayor with the London local elections. I look back and consider that the general election of 2001 was linked to the local elections; indeed, they were both moved—at least, the local elections were moved and the general election piggybacked them—to June 2001 because of foot and mouth disease.

I think that I am right in saying that in 2009 the Government of which the noble Lord had recently ceased to be a member moved the local elections to coincide with the European election, and that the right honourable gentleman Gordon Brown was quite happy this year to combine the general election with the English elections that were already taking place. The combination of elections is not exactly unprecedented; there has been quite a lot of it in recent times.

[Lord Wallace of Tankerness]

The only reason I proceeded with an historical analysis was that the noble and learned Lord’s noble friend said that it was “almost unprecedented”. I was identifying a number of occasions on which it had happened, under the auspices of the Government of which both noble Lords were, at some time, members.

[Lord Browne of Ladyton]

The coincidence of elections with foot and mouth, or with events such as conflicts, may be things we have to live through. I understand all that. I will not rehearse a speech I made at a Committee stage; the Minister was in the House when I made it. My point then was that I concede that there are, in some circumstances, arguments for what I call analogous elections, where the same parties are competing broadly over the same body of policies, either at local, regional, mayoral or national elections. There is some argument for combining them. My point, which I thought he understood, was that there is a strong body of academic, analytic and political opinion that says, “To conduct a referendum, which because of the nature of a referendum involves cross-party working and confusion, potentially against a background of party-political politics, with a party-political contest, is designed to confuse”. My point in the other debate, which I will allude to briefly, was that, particularly in Scotland, where our media is and will be dominated by arguments from London, this will do an extraordinary disservice to the Scottish people and the Scottish Parliament. Of all Members of this House, the Minister, having been a Member of that Parliament, and knowing how much it is valued by the people of Scotland, should recognise that. He should have listened to that Parliament’s view.

[Lord Wallace of Tankerness]

I am not sure about the confluence of interests between a European election and local elections; they are somewhat far apart. However, I take the noble Lord’s views that referendums are somewhat different. Of course, he will no doubt give us an explanation of why the Government in which he served brought together a referendum with local elections in 1998.

On what the noble and learned Lord, Lord Davidson, said, I indicated in my earlier remarks to the noble Lord, Lord Browne, that I have fought two elections to the Scottish Parliament in 1999 and 2003, both against the backdrop of war. It did not impede the people of Scotland from being able to address and identify what the issues were in the election. The fact that there is a concurrent referendum campaign in May next year will in no way impede them from evaluating from what the parties are putting before them—nor, indeed, from making up their own minds as to whether they wish the alternative vote system to be used for future elections to the other place or not.

I fully understand the absence of the noble Lord, Lord Foulkes of Cumnock, as I am sure that he wishes to be in the Scottish Parliament today to express his support for the Scotland Bill. He has amendments tabled for later stages in Committee on the Parliamentary Voting System and Constituencies Bill, and I rather suspect that this argument has got some way to go yet.

On the timing, the order will not be made until within six months. Nevertheless, the order was also laid within the six months. Subject to the typographical errors in the draft, it will be the same order that had been laid and circulated to political parties, returning officers and electoral administration officers. Therefore, while the form did not meet the six months, the substance certainly did. I hope that noble Lords will accept that. The timetable was set in motion by the previous Administration. I have no criticism of that, but it was always going to be very tight.