Parliamentary Voting System and Constituencies Bill

Lord Falconer of Thoroton Excerpts

Monday 7th February 2011 Lords Chamber

[Lord McNally]

That the Report be now received.

[Lord Falconer of Thoroton]

My Lords, as we begin Report on the Bill, we believe that it is important that the House is updated on our position on the Bill. We invite no prolonged discussion at this stage on the timing of Report.

The Bill is acknowledged on all sides of the House to be a significant constitutional Bill that has not been the subject of what is regarded as the norm for such a Bill—either public consultation or pre-legislative scrutiny. Report has been brought forward without the 14-day gap that convention requires between Committee and Report. These conventions exist for a reason. That 14-day gap allows consideration and discussion in Committee and then the formulation of amendments for Report and preparation for their debate. There has been one sitting day between the end of Committee and Report. It is for your Lordships to judge whether the many issues raised by the Bill meant that it was never going to be possible to scrutinise it properly in the time sought to be allotted by the Government.

We think it right to register the point about the gap, but the mood of your Lordships’ House has been to encourage the participants to resolve the problem by negotiation. The Opposition have supported and participated in this actively. They have been greatly assisted by the intervention of the Cross-Benchers. We have negotiated at all times in good faith. The Government indicated a basis for agreement on the main issues, to which the Cross-Benchers have responded, with our support, in accordance with the Government’s suggestions. Cross-Benchers have discussed amendments with the Government in accordance with what they believed the Government were indicating, but no agreement has been reached.

Our system of self-regulation works only if the parties are willingly to negotiate honestly and skilfully and can reach agreement. However, we want to help the process and to do so we have agreed today that we will seek to complete Report on Part 1 of the Bill today. There is a way to go, but my sense is that your Lordships want to get on. It is a token of our good faith that we seek to complete Part 1 today. No one could suggest that that was not very reasonable progress. We want this House to consider these matters in a reasoned and reasonable way, and we very much hope that the Government will respond to this. We want this House to be able to consider and, as appropriate, vote on the key issues before us on Report to encourage resolution by agreement.

[Baroness D'Souza]

My Lords, last week an amendment on public inquiries was tabled from the Cross Benches as a possible means of arriving at a compromise agreement between the Government and the Opposition. The Government promised to come back with a modified amendment. Following this there was an agreement that Committee on the Bill should be completed, as it duly was, last week. We are now on Report and we have further amendments on public inquiries, thresholds and the percentage variation. Perhaps this is an appropriate time to reiterate the role of the Cross-Benchers by laying particular emphasis on their being politically unaligned.

The amendments before us—some usefully tabled by expert Members on the Cross Benches—are to do with content, not process. As the current Convenor, I do not and cannot speak for one party or another in this debate, although as individuals, me included, we will vote according to what each of us thinks are useful amendments and what is an appropriate way forward. I can say that Cross-Benchers as a group wholly support the main task of this House, which is scrutiny. It follows that anything that might interfere with that role, be it a programme timetable, filibustering or flouting of the conventions of this Chamber, would probably not be supported. Thus the normal convention at this stage is that Report should go ahead, that reasoned arguments be put, that Divisions take place and that the Bill goes to the House of Commons by 14 February. I say with some confidence that this would be the view of the majority of the Cross-Benchers.

As your Lordships know, a great deal of negotiation has taken place. However, what is now called for is that the essence of these negotiations comes to the Floor of the House and that opinions be canvassed by means of voting. Whatever the outcome of the Divisions, the Bill would go back to the other place for consideration. This is the way in which this place has, for perhaps hundreds of years, conducted its business. Many of us might feel that we should now return to these practices and that necessary compromises are made at the final stage of the Bill, which is Third Reading, next week.

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[Lord Elystan-Morgan]

I readily accept that an abstention can count as a no vote. Whether it would in most cases, with great respect to the noble Lord, I do not think anybody can say. I am quite certain that it is wrong to assume that an abstention is always equivalent to a no vote. That is my proposition. I do not think that I have anything useful to add to the matter, save to say that what is at issue is the credibility of the parliamentary system—credibility that would be greatly damaged if some provision of this nature were not resorted to.

[Lord Falconer of Thoroton]

My Lords, this is an important amendment, which goes to the legitimacy of any change to the voting system. First, I do not believe that the stages in the argument are substantially in dispute. The referendum deals with an important constitutional issue and I have not heard anyone say that we should not have a referendum. There are people who object to referendums but, by and large, if our country is having referendums, this is an issue to have one on because it changes the voting system.

Secondly, this is an unusual Bill in so far as a referendum is concerned because it provides for a compulsory referendum, not an advisory one. By that I mean that if the vote is passed, the consequence is not that Parliament would then produce another Act of Parliament, as it did with the Scotland Act and the Wales Act, but that there is automaticity in that the Minister is required to bring forward an order that would automatically, in the light of the vote, give effect to the change in the voting system.

Thirdly, the effect of the provisions is that if, for example, there was a turnout of 25 per cent in the referendum, which no one regards as an outlandish percentage, you could end up with what is regarded by all as a major constitutional change being produced by 12.5 per cent of the country supporting it.

Fourthly, the reason why a referendum is required is that in constitutional change of this importance—and no one disputes its importance—it should be harder rather than easier than normal to effect such a change.

Fifthly, this is a change that has the support of the Liberal Democrats, while the Labour Party is divided on it and the Conservatives are against it. The effect is that it is almost certain that unlike with, for example, the Scotland Bill, the Wales Bill and the European common market in the early 1970s, Parliament would vote in favour of these changes. That means that, if there is no threshold, you have a situation where, far from it being harder to bring about this constitutional change, it may well be easier than it would have been with a normal Act of Parliament.

The noble Lord, Lord Elystan-Morgan, said that if you ended up in a situation where the referendum was passed by 12.5 per cent of the electorate, which would be the position, the legitimacy of the change would be considerably in doubt. I agree with that. It would—I quote the noble Lord—“eat like acid” at its legitimacy and put our voting system in play for whoever next forms the Government. There needs to be some protection to ensure that a major constitutional change such as this is not easier to make than through a normal Act of Parliament.

I am aware of the history of this matter, which is coloured by the threshold that was inserted in the 1978 Bill in the House of Commons. At the Committee stage, there was an interesting debate on that, during which George Cunningham, then the Member of Parliament for Islington South and Finsbury, in a very powerful speech persuaded Parliament that it would be wrong to make such a major change without there being a threshold.

[Lord Tyler]

Will the noble and learned Lord explain one point to me? His colleague in the other place, Mr Christopher Bryant, made a powerful speech against any threshold in this Bill, on which the Commons voted by 549 to 31. Why does the noble and learned Lord differ from his colleagues in the other place?

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[Lord Falconer of Thoroton]

I do so for two reasons. First, if one reads Mr Bryant’s speech, one sees that he made it clear that this was a matter for the Lords to form a view on. Secondly, the amendment moved by my noble friend Lord Rooker does not provide that the proposal would automatically fail, which was what was voted on in the Commons. My noble friend has come up with what seems a sensible conclusion to make the referendum an advisory one, which, as noble Lords have heard from the quotes from the Constitution Committee, is the norm in our country. My noble friend has found a way through in relation to that.

This is important. We were unsure what our position should be precisely on the point made by the noble Lord, Lord Tyler. We had a different position in relation to a drop-dead referendum, where, if you did not get a 40 per cent turnout, that would be the end of it. Instead, my noble friend has found a way through that.

I have listened with interest and respect to what was said by the noble Lord, Lord Alderdice, about the Northern Ireland position and to what my noble friend Lord Reid said. My view is that we are dealing with a voting system for the whole of the United Kingdom. Once one accepts the proposition that there needs to be something special in order to justify this change, there has to be support throughout the whole of the United Kingdom, which obviously includes Northern Ireland. Although I listened with respect, I do not think that the reason given means that the simple solution that my noble friend Lord Rooker has produced is inadequate.

The noble Lord, Lord Hodgson, said that there would be a differential turnout in relation to this referendum because there will be local, Scottish Parliament or Welsh Assembly elections in some parts of the country but not in others. If you have a UK-wide threshold for turnout, that assists in making sure that the differential turnout does not affect the result.

The Opposition support the noble Lord, Lord Rooker. We believe that what he has said will promote acceptance of AV, if that is the change, which is good for the country. If there is a majority among those who vote, but the 40 per cent threshold is not reached, it will then be open to Parliament to conclude that that is sufficient, but the matter would have to come back to Parliament. There would have to be a piece of primary legislation; it would not depend just on a statutory instrument. My noble friend’s proposal does not rule out—

[Lord Rennard]

Is the noble and learned Lord suggesting that it would be open to Parliament in that event to reject the result of the referendum if, say, on the mathematics that I have just worked out, 13.5 million people voted yes in the referendum—a greater number than have voted for any Government in recent general elections—and 4 million people voted against? If so, the will of 13.5 million people voting yes would not count, while the will of 4 million people voting no would. Ultimately, he says that the matter would go back again to Members in the other place to decide what the voting system should be for voters, rather than leaving it for the voters themselves to decide what system they have for choosing their elected representatives.

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[Lord Falconer of Thoroton]

The position would be exactly the same as it was in relation to the Scotland Act, where a massive majority voted yes in favour of Scottish devolution. It was open to Parliament to say no to all those people in the Act that followed, but of course Parliament said yes. Unless you take the view that one completely discounts Parliament altogether, it is unlikely that such a conclusion would be reached, but suppose that the position were that 5 million voted yes and 4.5 million voted no. Let Parliament decide what should then happen. That is the effect of the amendment moved by the noble Lord, Lord Rooker. With respect, that is a very sensible conclusion and one that is entirely in line with our parliamentary democracy. We on this side of the House will vote in favour of the Rooker amendment and I hope that other noble Lords will do so as well.

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[Lord Lamont of Lerwick]

If that argument is correct, why does it not also apply to general elections and constituency votes, which some noble Lords wish to alter?

[Lord Falconer of Thoroton]

Is it not also right that it was an automatic no when the level was not reached in 1978, which is not what my noble friend Lord Rooker is proposing here?

[Lord Wallace of Tankerness]

There is a difference because the 40 per cent related to something different. I am not entirely sure that I follow what my noble friend Lord Lamont said, because in general elections there is no threshold for what the turnout should be to make those elections valid and no one has ever suggested putting a turnout—

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[Lord Rooker]

My Lords, in moving Amendment A2, I wish to speak also to Amendment 7B, which I shall move later. In line with what I have said previously, I give notice that I shall not move my other amendments. I have to move Amendments A2 and 7B as they are government amendments to make the decision that was taken on 6 December to hold the referendum before 31 October 2011 work.

The noble Lord, Lord Alderdice, interrupted me when I was winding up. I was about to say that when the House makes a change with a few words that we all understand, the parliamentary draftsmen have to draft a provision to make it work. Back on 6 December the House voted by four votes that the referendum must be held before 31 October 2011. I am told that to make that work parliamentary draftsmen have drafted Amendments A2 and 7B. The referendum is planned for 5 May. As far as I am concerned, that was always okay, but my view is that in case something prevents it happening on 5 May, the Government need a lifeboat to enable it to take place before 31 October. Therefore, on behalf of the coalition, I am pleased to move Amendment A2 now and Amendment 7B later.

[Lord Falconer of Thoroton]

First, I congratulate my noble friend Lord Rooker, who knows the mood of the House much better than anyone else in it. It was a splendid victory. Perhaps I may also say how much I agree with his request for the list of concessions. I can help him on that. I was handed them at 2.29 pm this afternoon, and I have to say that they do not amount to very much, I am afraid. I obviously support the amendments that my noble friend is proposing. In effect, they make whole the amendment passed in Committee.

[Lord Wallace of Tankerness]

My Lords, I thank the noble Lord, Lord Rooker, for moving the amendment, as he said, on behalf of the coalition. He described the reasons for it. The Bill as it stood was defective, because, while the noble Lord specified that the referendum had to take place before 31 October, there was no means for identifying when the date had to be set—hence the need for an order.

The amendment also sets an appropriate test for Ministers to satisfy before using any order-making power, whereby,

“it is impossible or impractical for the referendum to be held on 5 May 2011, or that it cannot be conducted properly if held on that day”.

The test is right, because the referendum date can be moved away from 5 May only for practical reasons. It would be wrong, and have very serious implications, if the reason for that was the result of some delay that had not allowed consideration of the Bill to be completed in time.

The associated amendment to Clause 4 is also necessary in this context to ensure that the scheme which the noble Lord, Lord Rooker, envisages is properly workable. It provides a new power to make provision in secondary legislation to take account of a situation in which other polls are due to be held on any other referendum date set by the order.

Clause 4 as it stands will ensure that any poll which that clause already mentions is automatically combined with the referendum if it takes place on a new date set for the referendum. Any polls which Clause 4 does not mention would not be combined with the poll. It is impossible to say at this stage whether it would desirable to combine a referendum with other polls. A decision on that would need to be taken at the time and will depend on the types of polls.

In conclusion, I reassure noble Lords that, given the flexibility that these powers need to provide, any order made using the new powers will necessarily be subject to the affirmative resolution procedure. I end on a note of caution, because I cannot speak on this subject without saying how unfortunate it would be if the referendum were not to take place on 5 May.

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[Lord Newton of Braintree]

My Lords, I do not particularly want to follow the remarks of the noble Lord, Lord Howarth of Newport, not least in that I would not want to go down the partisan path he took in the middle of his speech, no doubt unintentionally. I do, however, want to find out exactly what is being asked because I found myself getting a bit open-mouthed at some of the things that the noble Lord, Lord Campbell-Savours, said. Do I understand that he wants a proposition that says, “Do you want change?”, to which in any normal circumstance, even if your wife says that you need a new dressing gown or pair of slippers, you ask what the alternative is? Then, when they ask you what the alternative is, you say, “We do not actually have an alternative. There are a dozen, 15 or 20 of them”. Once you have decided whether you want an alternative, the politicians will decide what alternative you want. I am bound to say that that totally lacks credibility, and I could not conceivably vote for it.

[Lord Falconer of Thoroton]

My Lords, at the heart of the amendment in the name of my noble friend Lord Campbell-Savours is the proposition that there has not been sufficient examination of what the right system is. It reflects the thump-thump-thump throughout this debate that there has been no adequate examination of the various voting systems. I notice that the noble Lord, Lord Newton of Braintree, who is very much to be admired, is indicating from a sedentary position a word that suggests he does not necessarily agree, but I do not invite him to express it.

That is not just my view; it is the view of the two Select Committees in both Houses of Parliament, it is the view that underlay the amendment of my noble friend Lord Wills calling for a commission of inquiry, and it is the basis upon which my noble friend Lord Campbell-Savours has put his amendment now. Like everything on Report, it is a refined version that says, “Let us have it, but only if there is a desire for change”. The fact that when Lady Newton of Braintree proposes that the noble Lord, Lord Newton of Braintree, buys a new dressing gown, he says yes, does not indicate that everyone, when confronted with change, says yes. Indeed, most people, when confronted with change on important political issues, tend to say no, so I will be interested to hear the view of the noble and learned Lord, Lord Wallace of Tankerness, on this issue, and the answer to the proposition that if the public want change, we should examine what the right change is before we give them only one choice.

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[Baroness Liddell of Coatdyke]

My Lords, I support the amendments of my noble friends, but I also ask a specific question of the Leader of the House. Over the weekend the Scottish media brought to my attention the speculation that the budget of the SNP minority-controlled Administration in Scotland could be defeated, and that that could lead to an early dissolution of the Scottish Parliament. Given that everything we have debated in Part 1 of the Bill is predicated on the Scottish Parliament elections taking place on the same day as the referendum, what is plan B if it transpires that the Scottish Parliament elections take place in March? There is speculation that it could be in March. As an Ayrshire man, the noble Lord, Lord Strathclyde, will recognise the expression,

“The best-laid schemes o' mice an' men

Gang aft agley”.

Things frequently “gang aft agley”. Will the noble Lord reflect upon this and give us some indication of what would happen?

The noble Lord deployed a very powerful argument that the reason for putting both on the one day was because of the £12 million cost of the referendum. It would seem that we might have a general election in Scotland in March and then a referendum on 1 May at a quite disproportionate additional cost. I would therefore be very interested in plan B.

[Lord Falconer of Thoroton]

My Lords, I understand the current position to be as follows. The AV referendum can, but does not have to, take place on the same day as the other elections that we have been referring to in this group of amendments. As I understand it, Clause 4(8) deals with the position if they do not occur on the same day. The amendments on the local authority elections, local referendums, Northern Ireland Assembly elections, Welsh Assembly elections and Scottish Parliament elections would all, in effect, forbid those elections to take place on the same day as the alternative-vote system. That is the issue; we should not be allowed to combine. The Opposition support all the amendments that would prevent combination, in effect, for the arguments that we have already heard.

First, there is a swamping of the AV issue. The Constitution Committee of this House wrote a report that said that, where you combine elections with a referendum, the evidence from other experiences shows that there is a tendency that the elections to Assemblies that affect peoples’ lives will swamp the question. This is a bad conclusion to reach because we all agree upon the importance of the question. Secondly, if you have so many elections in so many places, it puts pressure on the organisation—see what happened in the 2007 Scottish elections as a result of more than one occurring on the same day. Thirdly, there will be differential turnout—namely, some places may have higher turnouts than others because there are elections. It would be wrong for the result of something as important as this to be determined simply by the coincidence of elections of another sort being held. Fourthly, there is a lack of clarity. It becomes more difficult for the public when a person who is standing for election says one thing that people support and then opposes a particular proposition that the public might otherwise agree with. Fifthly, there is a lack of respect. Respect between the Parliaments is important. The decision was made to combine without there being any consultation whatever.

There appears to be only one argument in favour: the saving of approximately £12 million. This is a significant amount of money. It is worth ensuring that having a clear and simple vote on the question of whether there should be an alternative vote system is dealt with properly and with clarity. The Opposition support the whole range of amendments that would prevent combination.

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[Lord Kilclooney]

My Lords, earlier I raised the concerns that exist in Northern Ireland. I can understand the concerns of the noble Lord, Lord Foulkes, regarding how the count will proceed in Scotland, where two elections are held on the same day. The position in Northern Ireland is more confusing because we have three elections on the same day. I warned that this could cause confusion and over the past few days I have certainly experienced increasing unease in Northern Ireland about the count following these three elections. Two will be based on STV—one to the Northern Ireland Assembly and one to the district councils—and the third one on AV.

When I raised this matter with the noble and learned Lord, Lord Wallace, he said that when he came to respond to this amendment we would get an answer on what priority would be given to the counts for the three elections in Northern Ireland. Therefore, I should like to know in which order the counts for the three elections in Northern Ireland will take place, and whether we will have to wait for the result on AV to come through in Northern Ireland or whether it will come out at the same time as in England, Scotland and Wales.

[Lord Falconer of Thoroton]

We support the principle behind these amendments, which is for the AV count to take place after those for the Welsh Assembly, Scottish Parliament and local elections, the local elections count being caught by the amendment in the name of my noble friend Lord Lipsey. Whether that requires an amendment to the Bill or whether it can be dealt with by a clear statement from the Minister depends on what the Minister says, but we support the approach of these two amendments.

[Lord Strathclyde]

My Lords, it is useful to have had this short debate on this subject and I hope that what I say will be welcomed by the noble Lords, Lord Foulkes and Lord Lipsey, in whose names the amendments stand, and by others who have spoken in the debate. It is always good to hear the noble Lord, Lord Martin of Springburn, talk about great traditions. He finds great comradeship—if that is the right word—on traditional matters. In the dim and distant past I have been present at Glasgow counts, as well as at Ayrshire counts, so I understand what he means about the comradeship that occurs.

We debated this matter in Committee, when my noble and learned friend Lord Wallace made it clear that the parliamentary polls will, once everything has been verified, be counted ahead of the referendum poll. That is the principle that will underlie everything. The Government’s policy is very clearly that the votes relating to the elections, wherever they take place, will be counted before those of the referendum. The referendum count will come last, and the chief counting officer can, using her power of direction under paragraph 5(5) of Schedule 1, direct counting officers in the discharge of their functions or require them to take specified steps.

I refer noble Lords to the paper published by the Electoral Commission in December 2010, which is also available on its website. It sets out the chief counting officer’s intention to direct that the referendum count should not begin before 4 pm on Friday 6 May. The noble Lord, Lord Lipsey, referred to that. The decision to start counting the ballot papers cast in the referendum poll at 4 pm was reached in the light of discussions with the senior returning officers from all areas of the UK and followed consultation with a number of interested organisations and affected parties, including electoral administrators.

The timing of the count is ultimately a matter for the chief counting officer to direct. I understand that the Electoral Commission is satisfied that the assumptions underpinning this direction will mean that the referendum count should not delay the results of the scheduled elections. I am also aware that specific discussions between the commission and administrators are taking place to ensure that counting officers in Northern Ireland are equipped to carry out concurrent counts and that, in any event, this should not result in a delay in the results being announced for any poll. Therefore, I do not consider that this issue needs any further clarification in the Bill.

To those such as the noble Lord, Lord Foulkes, who would like a quick result, I say that the Gould report, which he will know well and has prayed in aid, considered overnight counts and came out clearly against them. Gould said:

“We recommend that if the polls continue to close at 10:00 pm, there should be no overnight count of the ballot papers ... To achieve the highest level of confidence in the counting process, it is essential that the emphasis is on the quality of decision-making related to the count, not on the speed with which the count is conducted”.