Parliamentary Voting System and Constituencies Bill

Lord Davies of Stamford Excerpts

Tuesday 18th January 2011 Lords Chamber

[Lord Williamson of Horton]

My Lords, I hope to establish a precedent by posing a direct question to the Minister. That would be a good idea, having sat through all these hours. An occasional question may elicit some response from the Minister which may help all of us. I have a question on this amendment because there is a big difference in principle between the amendment we are now discussing and those on which we spent a long time earlier on the number of constituencies.

Why do I think there is a big difference in principle? In relation to the number of constituencies, we had a voice from the electorate, showing that it wished to reduce the figure from 650 to a lower one. We can argue until the cows come home—indeed, we did—whether it should be 650, 625, 620, and so on. But there was a big difference in that in the electoral manifestos there was a direct statement on that point. Now we come to a completely different amendment relating to the 5 per cent margin and the amendment on the possibility of rising above 5 per cent but not above 10 per cent. Here comes my direct question to the Minister. Do the Government consider that they are in any sense bound by the views of the electorate to stick with 5 per cent? I cannot see that anywhere.

The Government can take 5 per cent as a marvellous figure which they would like to stick with and which they can try to defend. Is there a commitment to the electorate—not to the Government’s friends or anybody else—that I do not see? If there is no commitment, it means that the flexibility we have here is obviously greater than the flexibility we had on some movement below 650 constituencies.

[Lord Davies of Stamford]

I congratulate my noble and learned friend on introducing the amendment with an analysis that was extremely detailed and lucid. I thought it was quite masterly. He has, more or less at one stroke, transformed the atmosphere of the debates on this subject. The last two contributions—one from the Cross Benches and the other by the noble Lord, Lord Crickhowell, from the Conservative Benches—have shown that the House is now in a mood to discuss the whole issue, pragmatically and calmly, in a spirit of genuine compromise, I hope. A willingness to try to find the right solution and occasionally to accept suggestions from other parts of the House will be a good contribution towards finding that solution. It is a wonderful relief to those of us who have been through a slightly confrontational series of debates during the course of the night.

The amendment tabled by my noble and learned friend addresses directly the issue I raised earlier. As I see it, the Boundary Commission faces in its deliberations—as it always has faced and will continue to face—an equation with three variables and a trade-off between those variables. The variables are, first, acceptability of the extent to which the local electorate is happy with the boundaries within which it is placed, which is very important; secondly, equality of numbers; and, thirdly, the number of MPs. If you fix one of those variables you will have a corresponding distortion of the others. Fixing one will, of course, because of the trade-offs, result in something less than an ideal solution in the others. You will have to pay a price in the others.

If you try to fix two you will produce an enormous distortion. If the Government were determined to maintain the 5 per cent rule at the same time as maintaining the 600 limit for MPs—or any other arbitrary limit for MPs—there will be a tremendous distortion of the important aspect of acceptability in many boundaries in the country. This point has been well made by many colleagues on both sides of the House over the past 24 hours. There would be a great many constituencies where people felt not at all identified with the constituency in which they had been artificially placed. That would be a bad day’s work and we all want to avoid that.

My noble and learned friend has suggested the compromise of not taking away the need to keep within reasonable limits of equality but to have a 10 per cent rule rather than a 5 per cent rule. The effect of that has been quantified by my noble friend Lord Lipsey. If I recall correctly, he said that if the House passes the amendment, something like 30 per cent of constituencies will need to be reviewed because they will be over the 10 per cent limit, whereas under the original draft of the Bill brought forward by the Government, something like 60-odd per cent would need to have their boundaries reviewed because they would be outside the 5 per cent criterion. It is a very substantial quantified difference. In the light of that, I hope that the Government will accept the amendment.

If they do not feel able to accept the amendment, then, in the new atmosphere— which I enormously welcome and, from the remarks of the Leader of the House, I think the Government also welcome it—at the very least the House would expect a reasoned explanation as to why they cannot accept it, together with a better suggestion for achieving what we all regard now as a common purpose. The difficulty we had in the period before the lunch break was—I emphasise to the noble and learned Lord, Lord Wallace, who is staring at me at the moment—that there is a genuine concern among many of us on this and other sides of the House that the Government had rigid plans for enormous constitutional reform; that they were not being entirely open about it; that they were unwilling to consult on or discuss the issue before they brought it forward; and that it did not involve only the subjects in the Bill. We know that because they are preparing Lords reform proposals.

There was an horrific moment this morning—I trust that it was a complete misunderstanding—when the noble Lord, Lord McNally, said something which led a number of people to think that he was threatening the House with the introduction of a timetabling system, which would be a real revolution in the House of Lords and obviously not appropriate to a revising Chamber. I trust that the noble Lord did not mean that and that his words were not intended to convey that meaning. I am sure the noble and learned Lord, Lord Wallace, understands that those words were bound to provoke a reaction here. I am sorry that the noble Lord, Lord McNally, is not in his place as I make these comments.

While I am discussing this, I should say that I thought I heard him say this morning that in the late 19th century, when the Commons introduced a timetabling system, it did so as a result of filibustering by what he described as “Fenians”. The Fenians were Irish nationalists who were prepared to use non-parliamentary and violent methods, which is a pretty horrific way to describe one’s political opponents in a democratic assembly. I am sure he did not mean “Fenian” in that sense. It is also an insult to the Irish nationalists who were conducting that remarkable filibuster—people such as Parnell, Dillon, Healy, O’Brien and so forth. They were the people who led the Irish filibusters in the 1880s and they were far from being Fenians. They had opposed in Ireland, with considerable courage, those who said that only extra-parliamentary and violent methods would work in dealing with the British. It was a remark that the noble Lord, Lord McNally, might want to withdraw, both as applied to Parnell and the Irish constitutional nationalists of that time and to those of us here.

[The Earl of Onslow]

If this is not an example of a filibuster, I do not know what is. Dillon and the people who objected to the Irish filibuster in the House of Commons have nothing to do with this amendment. The noble Lord is bringing this House into major disrepute. He is quite good at changing sides so there is nothing new in that.

[Lord Davies of Stamford]

The noble Earl should know that, although I have changed parties, I have kept very much the same political principles all my life. I intend to continue to do so. The noble Earl was possibly not here when the noble Lord, Lord McNally, made the remarks that I have just referred to. I assure him that the noble Lord, Lord McNally, made those remarks; I have not just invented that. It seemed necessary to respond to the remarks and I was taking the obvious opportunity to do so.

[Lord Reid of Cardowan]

The illustration that my noble friend has given is absolutely apposite. What was being discussed throughout that period—proposed, ironically, by a Liberal Prime Minister—was the most important constitutional change of the 19th century. When it was rejected by this House, it led to another 100 years of war in Ireland. The consequences of getting constitutional change wrong are immense. No one is suggesting that this will lead to 100 years of war but it is not an insignificant change. It is, to many people’s minds, the biggest constitutional change in this country since 1832. Therefore, it deserves maximum scrutiny. Least of all does it deserve personal insults.

[Lord Davies of Stamford]

I am extremely grateful to my noble friend for his kind support. I come back to what the noble Earl, Lord Onslow, said.

[Lord Campbell-Savours]

We are having a very constructive debate on this amendment. I appeal to all my colleagues to conduct themselves in a way whereby we might get some compromise on this amendment.

[Lord Davies of Stamford]

I entirely agree and have already said several things along the lines of what my noble friend has just said. To respond to my noble friend, I am naturally grateful for his comments. I agree with everything he said. Since we are talking about changing political parties, no doubt in the 1880s I would have been a Gladstonian Liberal and a home ruler. At least, I trust that I would have been.

There has been a change in the atmosphere this afternoon. There have been memorable contributions from the Cross Benches and the Conservative Party in favour, in principle, of the way in which this amendment has been framed. I repeat that we all now hope that we will be able to have a reasoned and calm dialogue with the Government on this. I hope they can accept this amendment, which would go a long way to solving all the problems before us. At the very least, we would expect, in the new circumstances, a very good explanation if they cannot accept it and, I hope, a proposal of their own that is better than either the original one in the Bill or the one that my noble and learned friend has just put forward.

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[Lord Wallace of Tankerness]

I would like to draw the Committee’s attention to the fact that there are already within the Bill factors that the Boundary Commission can, if it so wishes and to the extent that it so wishes, take into account. They include special geographical considerations including, particularly, the size, shape and accessibility of a constituency, local ties that would be broken by changes in constituencies, local government boundaries—I will perhaps come back and say something about that because the noble and learned Lord, Lord Falconer of Thoroton, made a lot of the impact on local government boundaries—and also the proposed Rule 4, where the area of constituencies is taken into account so that one does not get constituencies that become unmanageable because of size. The size is set just slightly larger than the largest constituency at the moment.

[Lord Davies of Stamford]

Those criteria exist in the Bill, but they are all subject to the 5 per cent limit. That is our argument: the 5 per cent limit is so constraining that it gives the Boundary Commission little flexibility. Why can the Minister not bring himself to trust the Boundary Commission a little more? Surely discrepancies of 10 per cent in the population of different constituencies are not going to be shocking by anybody’s standards.

[Lord Wallace of Tankerness]

This point may be what the noble Lord, Lord Reid, wanted to pick up on. I tried to indicate that we believe that 5 per cent, which is 10 per cent because it is 5 per cent each way of the halfway mark, allows the flexibility to take into account quite legitimate concerns. Some noble Lords were present at earlier debates when former Members of the other place were talking about the importance of the bond between a constituency and a Member. We believe they can be taken into account, bearing in mind the factors that the Boundary Commission is entitled to take into account and the extent that it thinks it should take them into account.

Parliamentary Voting System and Constituencies Bill

Lord Davies of Stamford Excerpts

Monday 17th January 2011 Lords Chamber

That is what is so dangerous about the Bill—we do not really know what the agenda is. We know that the figure of 60 has been discussed within the Conservative Party over the past eight or nine years, or probably longer. We also know that 20 per cent was the initial figure and that it was then reduced to 10 per cent—that is, 60, give or take a few—over a five-year period, and the document talks about how the political parties should adjust their reselection processes to allow that to happen. As I indicated, MPs who lost their seats would then be considered for a peerage. However, this is a wholly different agenda and one that I find rather uncomfortable. I am willing to support this amendment because of the next amendment, which stands in my name. As I said, I think that the way in which we do these things is more important than the number, but if we are to have a number, this one would do very well.

[Lord Davies of Stamford]

My noble friend has done a great service to the Committee by bringing to our attention the pamphlet of Andrew Tyrie—I remember it coming out, but I think that it has since slipped the memory of many of us. As he said, Andrew Tyrie laid down as a condition of a reduction in the number of MPs a proportionate reduction in the payroll vote in the House of Commons. Is it not the case that the Government have no intention as far as we know of reducing the size of the payroll vote but are going in the opposite direction? When I was in the Ministry of Defence, I thought that we could do better with one fewer Minister. Although the Government have come through with utterly irresponsible cuts in defence capability, they have increased the number of Ministers by one. That is quite extraordinary and shows that the Government are moving in totally the wrong direction.

[Lord Soley]

My noble friend puts his finger on a critically important point, which I want to cover, along with other related issues, in Amendment 59.

Parliamentary Voting System and Constituencies Bill

Lord Davies of Stamford Excerpts

Wednesday 12th January 2011 Lords Chamber

[Lord Lipsey]

My Lords, with this amendment, we pick up some of the debates that we were having on Monday night—I fear that we must have done something on Monday night that made noble Lords feel that they did not wish to remain in the Chamber for the whole of the subsequent debate.

In that debate, we were discussing the timetable for the re-warding of constituencies. The word that was used for the Government’s timetable, which means that this will be done by 2013, was “achievable”. I agree with that; that timetable is achievable. I have checked with experts in the matter and there is no doubt that, if the right resources are applied to the Boundary Commission, it can be achieved. However, I understand from reading the newspapers that a man recently achieved the feat of rolling a marble up a 12,000-foot mountain with his nose, so that feat is achievable too, but it does not make it sensible or a very good way to climb mountains. In the same way, I am going to argue that 2013 is not a sensible date by which to seek to conclude the first boundary review.

We have to understand that there is a toxic blend of two elements in this first review. The first is well understood—the reduction in the number of MPs from 650 to 600. We will come back to whether that is a good or bad move later, but that is the Government’s policy and it is part of what has to be dealt with in the boundary review. The second element in the toxic blend going forward is the five-yearly review, which means that reviews are going to happen every five years and cause upheaval.

However, what has to be understood is that this first re-warding is going to create greater upheaval than any review before because it will have the whole of the 50-seat reduction as well as having to adhere to the 5 per cent margin. It is hard to exaggerate how radical this review is going to be and how much upheaval it is going to cause. Just to take one example from the many that I could go into, Democratic Audit, an independent think tank, calculates that if these provisions on 600 seats and 5 per cent tolerance go through, there will be only nine counties out of the 46 in England where county boundaries are still respected in the drawing of constituencies. If my arithmetic is right, that means that there are 37 counties where county boundaries will cease to exist. That applies again for local authority ward boundaries. This is a complete redrawing of the electoral map, yet it has to be done not in five years, which will be the timetable for subsequent reviews, but in just over two years. This extraordinary upheaval has to be crammed into two years.

This decision has not been made out of a desire to get the task done well or anything like that; it has been made, quite frankly, because the Tories believe that they will win more seats under this disposition. The really peculiar thing, which I find almost impossible to believe, is that no independent person who has looked at it thinks that this is likely to be true. For example, Democratic Audit, which has done the most detailed analysis, says that of the 50 seats lost under the Bill, 17 will be Tory and 18 will be Labour. There will not be much difference and that is well within the margin of error. On seeing the 300 pages of legislation before the House, I think that that is an awful lot of trouble to go to to win one extra seat. Still, politicians will be politicians.

One has to think also of the side effects. For example, in order to get this job done in just over two years, public inquiries are to be abolished. We will come to the case for and against public inquiries later in our debate, but this seems a curious reason to abolish public inquiries—not because they are good or bad things, or because they contribute or do not contribute, or whatever, but in order to get to an arbitrary, politically imposed timetable for the new boundaries to be placed. When you take into account the fact that the political advantage is illusory, the proposal beggars belief.

Therefore, I propose the year 2015 for the completion of the first review under this Bill. It would allow a less hurried approach and, should the House decide so to rule later, would mean that public inquiries could be restored and that we would get more sensible boundaries at the end of the process. My amendment would not change what will happen; it would just change the time at which it will happen. I believe that I am proposing a more sensible pace for what is a fundamental reform.

[Lord Davies of Stamford]

My Lords, I think that this clause is deeply suspect. I support the amendment of my noble friend and I should happily vote for other amendments giving slightly more time for a Boundary Commission to undertake its task. It is quite extraordinary that it is now felt responsible to compress the time available for a Boundary Commission to undertake its work into about the half the time that it traditionally takes, while imposing on it quite unprecedented constraints—the need at the same time to achieve the maximum 5 per cent limit and to reduce the total number of MPs by the arbitrary figure of 50.

If you have a contractor or several contractors bidding for your business and one says that he can build your house, motorway, piece of machinery, factory or whatever in half the time that it has always taken in the past, and in half the time that the competitors say that they need, you would be sensible to be alert at least to the possibility that serious corners are being cut. It is clear that serious corners, including any sense of public inquiries or appeals, are being cut.

Such inquiries are essential in the democratic process. I have given evidence in a public inquiry on a Boundary Commission report. We did not carry the day, but I and those who supported the same point of view all felt at the end of the process that we had had a thorough and fair hearing and that it was an essential part of democracy that such a debate should take place in public about proposed new constituency boundaries. That is the only way in which the public can be reassured that nothing surreptitious is going on and that there is no hanky-panky on the part of the Government covertly trying to influence the result of what should be obviously an entirely objective non-party-political process. Those things are terribly important. All those safeguards are going out of the window.

If I was a member of the Boundary Commission, I should like to have the mechanism of the public inquiry and the appeal process preserved. I would feel it much more likely that I did a good and proper job if there was that check and balance in the system. I should welcome the opportunity to listen openly and frankly to the expression of other views on a particular determination that I might make and to think again in the light of that. I should feel that I was doing a much better job having had that opportunity and that there was much less of a possibility that there might be some angle or consideration that had been neglected.

I do not think that it is a matter of dispute that a corner is being cut in this case and I do not think that it can really be a matter of dispute that this is a very serious corner that is being cut. It is more than a corner because it is something quite fundamental to the process and to public confidence in it. What is being cut out is, if you like, the dialogue between the bureaucracy, or the agency in the form of the Boundary Commission, on the one side and the general public on the other. It is a serious matter.

I have listened to a lot of the debates, although I have not contributed before, but I have yet to hear from the government side a cogent reason as to why this has to take place. The only answer that we get is that it has to happen by the time of the next election. That takes us back to the gerrymandering issue that has been raised on many occasions. Why does it have to happen by the next election? We are trying to get the electoral process right, so if we are going to make substantial changes let us go through the process carefully and thoroughly so as to make sure that we take the public with us. We should make sure that we have something that is valid not just for the next election but for generations to come. We cannot keep coming back to this matter.

Frankly, the haste is unworthy of the democratic process and unworthy of the way that constitutional changes should be carefully deliberated in this place. I intend to support amendments along the lines of those put forward by my noble friends that would extend the time available to the Boundary Commissions to complete the deeply delicate task with which they are now going to be confronted if this Bill gets on to the statute book.

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[Lord Grocott]

I can see my noble friend’s point, although I am not sure I agree. There will always be a lot of people who want to be a Member of either of these Houses—quite rightly because it is a wonderful privilege. There is no shortage of people who are keen to stand, for all the hazards of elections—and I know all about the hazards. I simply put it to the Government that it is not unreasonable to suggest that we should have a reasonable period of time—six years was my suggestion—before the next boundary review, not least because we have only just had the last one. The 2010 general election was fought for the first time on new boundaries. That was pretty unsettling, as it always is. The Government are wrong to propose another one so soon. If they want to change the mechanism of elections, obviously they can do that. They have a majority that will enable them to do that. If they want this Bill to become an Act, in whatever amended form, they will probably get away with that as well.

[Lord Davies of Stamford]

Before my noble friend concludes, can he help me with a question that I asked earlier, which is not rhetorical? Why does he think the Government are being impelled into this unseemly haste? What is the motive for doing away with what has been an accepted British tradition for a very long time: the boundary review and public inquiry procedure? What is the motive for throwing all that away and removing the strong degree of political legitimacy that derives from this process?

[Lord Grocott]

That is a question for the government Front Bench. I think I know the answer. It has something to do with five days in May, but we can wait for those on the Front Bench to answer that. If they want to look after their own Back-Benchers, let alone the Back-Benchers of any other party, my advice to the Government is that to have parliamentary boundary reviews every five years is not such a good idea as they thought when it was first put on the drawing board.

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[Lord Maclennan of Rogart]

The noble Lord enjoyed a degree of stability which has enabled his voice to be heard consistently for decades in politics. I do not think that he personally can have been seriously troubled by the sitting of the Boundary Commission. His position is more the norm than that of the MPs who are fearful about modest changes at the margins to reflect population or electorate changes.

There seems to be an underlying unwillingness to recognise that significant changes can happen in the course of 10 years and that constituency electorates should be broadly comparable to each other. If Boundary Commissions may make mistakes, why should we wait for another 10 years to put those mistakes right? In reality, concerns will be raised if these issues about local communities are not adequately addressed. Consequently, those changes should be made within five years.

[Lord Davies of Stamford]

On the noble Lord’s point that the Boundary Commissions may make mistakes, does he not agree that the chances that the Boundary Commissions will make mistakes will be much greater if the counterweight of public inquiries and appeals is removed? Would it not alter the equation considerably if the Bill results not only in the Boundary Commissions recommending changes more frequently but in those recommendations being more likely to be—to use his own term—mistaken?

[Lord Maclennan of Rogart]

That issue will be addressed in separate amendments and is a perfectly fair point to make. There may be a case for continuing with public inquiries, but that does not affect the argument about the frequency with which an attempt should be made to have up-to-date boundaries.

However, the case for continuing with public inquiries is not made simply by arguing that, for the peace of mind of those who are thinking about standing for Parliament, MPs should have a security of tenure for up to 10 years. That is artificial, unreal and inappropriate in considering these matters. The purpose of the reform is to satisfy the electors, not the elected.

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[Lord Wallace of Tankerness]

It was quite proper that, having indicated a coalition commitment to introducing this legislation and having laid down certain times, the Government should make speedy progress to introduce the Bill. I also believe that it has had more than 40 hours’ consideration in the other place. It has now had approximately forty-nine and a half hours’ consideration in this place with, no doubt, many more hours to come.

The reason why the Government propose reviews every five years is that at present—I think that this has been acknowledged—a review takes place every eight to 12 years. We believe that that leads to boundaries becoming out of date and infrequently refreshed. For example, the movement of electors means that boundaries can get out of date quickly. In 2006, some 59 constituencies were more than 10 per cent larger or smaller than the quota used for the previous review. Three years later, by 2009, the number of constituencies outside that 10 per cent range had almost doubled simply due to the movement of electors. These variations in size make votes unequal. The figures demonstrate how long periods between boundary reviews can exacerbate that imbalance and unfairness.

The noble Lord, Lord Martin of Springburn, graphically illustrated the life and commitment of Members of Parliament and his comments were echoed by many other noble Lords who have been Members of the other place. However, it is fair to say, as my noble friend Lord Maclennan of Rogart indicated, that the underlying purpose of this Bill is primarily to serve the electors, not the elected. By a similar token, I say to the noble Lord, Lord Rooker, that there was no consultation with local government on the use that it made of current parliamentary boundaries. However, I do not think that it is beyond the wit of local authorities to find other boundaries within which to deliver administrative services. The important point is that we look to ensure that the Bill is in the interests of electors and represents one vote, one value.

I listened carefully to what the noble Lord, Lord Gilbert, said. His comments on the utility of boundary reviews displayed a refreshing candour. However, I could not agree with his comment about pulling up the roots every five years. The rules that the Bill sets down for the Boundary Commission state at paragraph 5(1)(d) of Schedule 2 on page 10:

“A Boundary Commission may take into account, if and to such extent as they think fit … the inconvenience attendant on such changes”.

That is disapplied for the first review, which is to take place and report by October 2013, because by its very nature—I think that this has been recognised—when one loses 50 seats the upheaval is bound to be greater. But thereafter the Boundary Commission is able to take into account,

“to such extent as they think fit … the inconvenience attendant on such changes”.

My noble friend made a pertinent point when he indicated that the more frequent and regular the review, the less likely it is that there will be any huge change in constituency size. The figures that I cited show that the longer the interval between reviews, the more the figures diverge, which inevitably leads to greater upheaval when the review actually takes place. Indeed, in evidence to the Committee on Standards in Public Life, Professors Butler and McLean indicated back in 2006 that it was possible to have more frequent reviews without significantly impairing their equity.

[Lord Davies of Stamford]

As far as I know, in 2006 no one had conceived this extraordinary idea that every time you have a review you have to make sure that all the constituency numbers are within 5 per cent of each other. It is surely the addition of that new rule to the five-year boundary review that will cause the inevitable disruption.

[Lord Wallace of Tankerness]

I cannot accept that. If you were to have a longer period, that would lead to greater disruption, but you have to take into account the five-year period and the fact that in reviews after the first one the Boundary Commission has the discretion to take into account any inconveniences attendant on the change, even allowing for the 5 per cent variation. Therefore, I do not believe that it leads to the same degree of upheaval.

I cannot accept the premise that the noble Lords, Lord Howarth and Lord Martin, mentioned that this is somehow a recipe for one-term Members of Parliament. I do not think that that stands up.

Parliamentary Voting System and Constituencies Bill

Lord Davies of Stamford Excerpts

Wednesday 12th January 2011 Lords Chamber

[Lord Davies of Stamford]

I rise to respond to the comments of the noble Lord, Lord King, and to say how pleased I was that, for the first time in the many hours of debates on this Bill, we had a contribution from the Conservative Back Benches. I totally agree with the noble Lord that the way in which this Bill has proceeded through this House is more than somewhat regrettable.

The reason why it is regrettable is that everyone agrees that it is a constitutional Bill and that constitutional matters are, or ought to be, above party politics. Everybody would agree that it is very desirable that any constitutional change, if possible at least, should gain the widest degree of consensus between political parties before being pushed through and that reasonable attempts should be made to build up a consensus by the Government who take the initiative to change the constitution in one particular way or another.

There have been at least three very unfortunate aspects to the passage of this Bill. I am not privy to conversations that may have taken place through the usual channels or otherwise, but if they have taken place they have left no trace in the debates that we have had in the past few weeks on this subject. It appears that no attempt has been made even to investigate whether there might be scope for some sort of compromise or negotiation. Of course, everything is not perfect with our electoral system at the moment. Of course, there are enormous anomalies, some of which we have drawn attention to on these Benches, such as the very high levels of non-registration among certain categories of our population. Another anomaly and a problem to which the Government have rightly drawn attention is that our elections take place on the basis of electoral registers that are excessively out of date. That is a real problem.

There is a possibility here for an adult, sensible, open-minded discussion at least to see whether there could be a basis for agreement or consensus on some of these issues. It is deplorable to take a constitutional Bill through this House without any such attempt even being made. If it is made and the Opposition are unresponsive, it will be open to the Government to say, “We tried. We discussed the matter formally and informally but you guys were unwilling to have a serious discussion on the subject”. That is the first reason why I regret the way in which the Bill has gone through the House in this fashion.

Secondly, and why I was so pleased to hear the contribution of the noble Lord, Lord King, it seems to me to be extraordinarily anomalous, artificial and even a little sinister that, although we have all these intelligent men and women of the world on the Tory Benches who we know have strong views on political and constitutional subjects, they have all been completely silent. That is an extraordinary state of affairs. It seems to me that the legislature is not doing its job when half, or at least a large proportion, of it seems to be forced into silence. That seems an odd state of affairs, but it is a feature of our debate that will be very striking to any historian who looks at the record. I am glad that the noble Lord, Lord McNally, is nodding at me when I say that. He may be in a better position than I am to talk to some of his Tory colleagues to see what the inhibition on them is. The noble Lord’s party’s Back-Benchers have taken part. We have enjoyed their contributions. I have sometimes agreed with them.

The third big problem about the way in which the Bill has been taken through the House is the apparent complete lack of any margin of manoeuvre, flexibility or negotiating power on the part of Ministers. We know them; they are able men and women. I remember the noble and learned Lord, Lord Wallace, being an extremely distinguished and able Member of the House of Commons when we both served there. I have to respect the noble Lord, Lord McNally, for the way in which he conducts business from the Front Bench, but even when a moment ago we came across the tiny matter about “may” or “must” in relation to the obligations of the Government to implement the Boundary Commission’s recommendations, it was quite clear that the noble and learned Lord, Lord Wallace, had the same difficulty that we had in understanding unambiguously what the text was meant to say.

Surely this is the job of a legislature. If the Government produce a text that is unclear, we improve it; we make a change and we write a simplified, better version in clear English. That is our job. Why do we not do that? Why are the Government so frightened to make the slightest change of one word in the text of the Bill as it goes through the House? What is the point of our having all these discussions for hours if the Government as represented in this House—Ministers in the Lords—have so little room for manoeuvre, so little delegated power, that they cannot make progress on some minor point in the course of our long debates? We will not do a good job on the Bill if those three problems remain.

[Lord Campbell-Savours]

The answer to the question that my noble friend is putting is that there is a contractual agreement between two parties. That is what is silencing this debate. Members of one party cannot get up to object because they know that it is a negotiated position with the other party to the coalition. I am in favour of coalitions, but this coalition is in an experimental stage. It has not mastered a way to freely debate within the contractual agreement.

[Lord Davies of Stamford]

I hear my noble friend with great interest. He is postulating a possible cause of the triple malaise which I have just described. I am trying to limit myself to describing the facts as I see them; I am not going in for any normative judgments or hypotheses about why or how the situation has arisen. I just hope that if we all recognise that if there is a malaise or a problem and that the fault is not with one particular section of this House alone, we might make some further, better and more edifying progress on the Bill over the hours, days or weeks—I have no idea how long it may last—as we proceed in this piece of our legislative work.

Terrorist Asset-Freezing etc. Bill [HL]

Lord Davies of Stamford Excerpts

Wednesday 6th October 2010 Lords Chamber

[Lord Sassoon]

I do not believe that the rules about what evidence can be brought before the court are in any way changed by what we are proposing from the conventions that apply. It relates in some way to the point that the noble and learned Lord made about the nature of the evidence that should be there before an order is made. The noble and learned Lord, Lord Lloyd of Berwick, quoted one Supreme Court justice; I could quote others but perhaps I should not detain the Committee. I might have referred to that at Second Reading. The noble and learned Lord, Lord Rodger, has in some of his remarks expressed a different view about the nature of the supporting evidence in order to support very much a preventive approach to this regime.

[Lord Davies of Stamford]

Following the point just made by the noble and learned Lord, Lord Lloyd, if the Bill were to place the responsibility on the Treasury not to designate but to seek an ex parte decision by a judge to designate, would that hearing not be held in camera? In those circumstances, would it not be possible to provide, for example, evidence from the security services, such as SIS and GCHQ, without any danger to national security?

[Lord Sassoon]

The issue here, as the Government see it, is to get a workable regime that is able to respond flexibly and appropriately and can be a preventive regime. The balance we have struck between a limited period when the evidence can be used to support a ministerial decision on the basis of reasonable suspicion, followed by the reasonable belief with the appeal to the court, is the right one. There are different ways of doing it which would entail various ways of the court looking at it. I come back to the fundamental point—my noble friend Lord Carlile of Berriew has absolutely gone to the heart of this. While we could debate alternative ways of doing it, in striking the balance it is appropriate to have a ministerial decision, with the person designated able to challenge it through an appeal process in the court.

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[Lord Davies of Stamford]

The Minister is answering me by saying that the balance is in favour of the Treasury route because it is a more appropriate route, which is slightly circular. Can I establish what exactly it is that the Government feel is in the route’s favour? What are the decisive criteria in favour of taking the route that they suggest? Is it a matter of time? Is the noble Lord suggesting that it is a matter of time because Ministers could take decisions more quickly than a judge could grant an ex parte injunction or designation? If not time, what other specific considerations does the noble Lord have in mind?

[Lord Sassoon]

Ultimately it is the responsibility of the Executive to make these orders. They have the operational information at their disposal. Yes, the orders can be made very quickly. Fundamentally this is an appropriate action power of the Executive, with checks through the courts. That is the way it has operated to date, with the important exception that we are strengthening both the test that Ministers have to apply and the ability to challenge decisions through the courts. I take to heart the words of the noble Lord, Lord Myners, as a Minister who was involved in implementing the regime. He graciously said that the new construct provides a better approach than the one in the previous legislation. I take that very much to heart from a former Minister who is used to making these difficult judgments, which have to be made.

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Debate on whether Clause 2, as amended, should stand part of the Bill.

[Lord Davies of Stamford]

My Lords, I will make two points. The first relates to the issue that we have been debating, about which I am far from satisfied; that is, the merits of having a process under which it is the Treasury—and therefore Treasury Ministers on the advice of Treasury officials—which designates someone for the purpose of the Bill, and not a judge sitting in chambers acting on an ex parte request or application. The noble Lord, Lord Sassoon, has been extremely conscientious in answering all the points that were put to him this afternoon and I make no personal complaint about that at all. However, I repeat the point that I put to him as I was not satisfied with the response. He still has not revealed what actual practical, substantive advantage there is in having a Minister rather than a judge take responsibility for this initial, crucial act of designation. This is an enormously important matter. If there were strong pragmatic reasons relating to national security and the defence of the lives of individuals, I would be the first to say why we have to take certain action which is unpleasant and unattractive in terms of our civil liberties and why we sometimes have to strike a balance. However, those merits have not been argued and that substantive point has not been put forward and I am still completely in ignorance as to why the Minister has gone down this route rather than another.

We can always speculate and say that Ministers are always inclined to give themselves extra powers whenever they can, that that is a natural instinct of government and that I am being naive in not recognising it. That is a possibility but I tried to help the Minister by suggesting that it might be a question of time. Sometimes time is of the essence in these terrorist cases. Information might come from some source or other which has to be acted on very quickly, say in half an hour, and there is not time to apply to a judge. I offered the Minister that argument if he wanted to pick it up, but he decided not to do so. Perhaps he will now pick it up in responding to me. If he will not do so, may I ask him to deliver another convincing argument—a practical, substantive argument—not just a circular evasion such as saying that it would be appropriate, a right balance or something of that kind? We need to know that, for reasons of principle and practice. I have always been brought up to believe that in a free society any decision expropriating, encumbering, seizing or freezing the property of an individual could properly be made only by the judiciary, not by executive action. I think that is a principle to which we are all attached in this country and in any free society worthy of the name. It can be overridden only for very strong reasons. Therefore, we need to hear those strong reasons.

I also put forward pragmatic points, which are subsidiary and not quite so important, in favour of the judicial route. One is that, however thorough and conscientious the Minister and his officials are in these matters—I am sure that they are—they would be even more alert and thorough in their preparation if they had to go before a judge. Life is like that. The other pragmatic reason has been put in different ways in the House this afternoon. For an individual, a designation order of this kind is obviously a catastrophe. He or she may well stand to lose his or her employment—that point has already been made—but I think of someone who runs a business and suddenly finds that he cannot pay his suppliers or staff or pay back bank loans or something like that while the order is in force. He will certainly face a delay in making contractual payments while he perhaps appeals the designation or applies for a licence. Therefore, an individual may suffer a long-term and serious penalty if he is the innocent victim of an unduly hasty designation. That should make us all pause very strongly. I accept that the Government’s very welcome concession on appeals rather than judicial review means that there would be less time to wait before an appeal takes place. God knows, judicial reviews last a very long time indeed. Nevertheless, as has been pointed out, the waiting time would be a great deal longer than 30 days and would probably last some months. Therefore, it is important that there is an opportunity for a judicial sight of the issue without waiting for the appeal procedure to be triggered.

I shall not pretend to the Government that I am inclined to vote against the clause even if I am not totally satisfied, because I have been entirely undercut by my noble friend the other Lord Davies, who has told me—this was news to me—that the previous Government, of which I was honoured to be a member, accepted the principle that decisions in this area should be made by executive power rather than by judicial decision. My responsibilities in the Government were in very different areas and I did not have the faintest idea at that time that this issue was being debated or decided in that way or any other. As I may be deemed to have collective responsibility for the decision that was taken, although I never said anything about it at the time, it would clearly be rather cynical or opportunistic of me to start making a big issue about it after the event. Nevertheless, I hope that the noble Lord will think that my points deserve a substantive and considered response. I greatly look forward to that.

The other points I want to raise specifically in relation to the text of the Bill are those that I made in general terms on Second Reading about piracy, the hijacking of ships and aircraft and the kidnapping of individuals. As I made clear on Second Reading—no one contradicted me and, indeed, we all know that this is the case—there is a very serious practical problem at present in the Gulf of Aden. We hear about it in the media only when British ships or British nationals are hijacked or abducted. That has happened, although not in recent weeks. However, it is a very common occurrence for ships and their crews to be abducted. I am told by underwriters in the City of London that it is now a regular business for ship owners and their underwriters to pay millions of pounds in ransom money to these particular terrorists, as I call them. That is a very unfortunate situation. Those terrorists or hijackers face no real physical risks at present. They have learnt that the rules of engagement under which NATO and the EU naval forces deploy in the area mean that they will not get fired on if they do not fire in the first place. Therefore, there is very little physical downside from their point of view. There is absolutely no financial downside whatever—that is, of course, the critical point for this debate—as they can quite legally receive and hold these ransom moneys and, indeed, people can legally pay them the ransom moneys. This is an extraordinary situation in which we as taxpayers are paying for these naval forces in the Indian Ocean to try to protect world shipping and the freedom of international trade. We are putting our men and women at risk on Her Majesty’s vessels in that cause, which I believe is a good cause. Yet we are allowing these malefactors who are carrying out these hijackings to receive this money with impunity and enjoy it. This is contributing strongly to the destabilisation of Somalia and is relevant to what I am coming on to in a moment—not least to its appalling consequences for the individuals concerned and the systemic damage to international trade and so on that I have just mentioned. That is because the money received is paying for warlords, the purchase of arms, the bribing of politicians and judges, and the destruction of any stability in that country. It is a very bad story. The western world is simply sitting idly by and watching this money flow to these people.

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[Lord Sassoon]

First, I should say that I am grateful to the most reverend Primate. If we have managed to raise a bit of fog through the combination of a probing amendment and a bit of detail from me, and be reminded that we are meeting part of the test in Magna Carta, we will have spent a worthwhile hour or so. He also answered rather eloquently part of the further challenge from the noble Lord, Lord Davies of Stamford, on whether it should be the responsibility of the Executive or the courts to issue the order. I do not know whether the noble Lord is still looking for an answer. He partly answered the question himself, because I was going to start by reminding him that indeed it was the previous Government who operated the regime in this way. It was the Bill passed by this House which became an Act in February—

[Lord Davies of Stamford]

I quite understand that the noble Lord is trying to tease me in this way and he is welcome to do so, but I am not asking for an ad hominem response to this point; I should like a substantive response, please.

[Lord Sassoon]

I will try briefly to help the Committee. There is a judgment to be taken in many areas where the Executive exercise authority that could be handed over to other people; the courts might be one place to which it could be handed over. However, I fundamentally believe that actions and decisions to prevent the commission of acts of terrorism, as the noble Lord points out, often must be taken under very considerable pressure of time and require fine judgments of operational matters which, as I have attempted to describe, involve the intelligence and law enforcement agencies. The combination of the flow of information, the time required and the complexity of decisions is suited to decision-making by the Executive, subject to the important safeguards of the courts. I do not know what more I can do, other than say to the noble Lord that I absolutely agree that some of the speed and operational considerations that he raises are ones that make these decisions a proper function of the Executive.

I will also say that I do not accept the word “catastrophe” if it relates to somebody who is reasonably suspected or believed to be involved in a way that leads to the freezing of their assets, subject to the safeguards. We have put in place licensing provisions, and I explained at some length how those are operated right from the start of the designation. Of course it is a serious matter to freeze somebody's assets, but when we talk about the balance against protecting the public against terrorist acts, we should be careful about using “catastrophe”, given the nature of the threat on the one hand and the protections that I have described on the other.

I will move on swiftly to the question of piracy, kidnapping and hijackers. Of course the Government take all these matters extremely seriously. In so far as they are linked to terrorism, as defined in the way that the noble Lord has set out, they will come within the provision of the Bill; but often piracy, kidnapping and hijacking will be independent of terrorism and so not the proper province of the Bill. However, this absolutely does not mean that the Government do not take this seriously, particularly the question of ransom payments. We do not encourage the payment of ransoms. There is a range of other ways, for example through the money-laundering rules, in which aspects of the transmission of illegal money are dealt with, and the Government continue to keep under review all these matters. I suggest that, although it is important that they are raised, they go beyond not only Clause 2 but the Bill itself. I ask the Committee to agree that Clause 2 should stand part of the Bill—

[Lord Davies of Stamford]

I am grateful to the noble Lord for giving way at the last minute. I take note of the fact that obviously we are all reassured that the Government do not actively encourage the payment of ransoms and that they take the matter very seriously. However, if the problem is so serious—and the noble Lord agrees that it is serious—we should do something about it. The Government, after the election, now have a responsibility to do something. I would be grateful if the noble Lord will give an undertaking to the Committee that he will discuss with his colleagues what might be done, either legislatively or by use of executive power, to inhibit the payment of ransoms, or at least look again to see what could be done more effectively to make these activities less cost-free and risk-free to the terrorists.