Parliamentary Voting System and Constituencies Bill

Lord Falconer of Thoroton Excerpts

Wednesday 16th February 2011 Lords Chamber

[Baroness Trumpington]

Many of us, I believe, voted for the Government out of loyalty to the Government, and not for the matter on which we were voting in the last round. I have listened to all the arguments today and I am thoroughly convinced by the amendment of the noble Lord, Lord Rooker, and by the speakers who have spoken. I fully intend, for the first time, to vote against my Government.

[Lord Falconer of Thoroton]

My Lords, we have had an absolutely scintillating debate on this issue. The issue for the House today is whether we should ask the other place to think again. I believe that that is an interaction of two issues: first, the extent to which we think it has been given adequate consideration already; and secondly, the importance of the issue. As for whether it has been given adequate consideration already, this proposal first emerged as a matter of debate a week ago last Monday, when the noble Lord moved his amendment and it was passed. It went to the other place yesterday. It was one of 104 amendments, of which more than 95 were not debated at all. This amendment was debated for 46 minutes. Of those 46 minutes, more than 30 were taken up by Mr Mark Harper speaking on the issue. I say in parenthesis that there may be times when Mr Mark Harper should emulate his near namesake Harpo Marx rather than Mr Mark Harper himself.

So Mr Mark Harper discussed it for more than 30 minutes, but in the course of his statements he misstated the effect of the amendment on a number of occasions. In relation to a vote in favour with a turnout of under 40 per cent, he said:

“So, even if the public had expressed a clear preference, it would not count”.—[Official Report, Commons, 15/2/11; col. 899.]

That was wrong. The same mistake was made this morning in the Times, which stated in its leader:

“In an attempt to derail the referendum on the alternative vote … system, Labour peers, led by Lord Rooker … and with the connivance of some Conservatives, have defeated the Government on an amendment stipulating that the result of the referendum should only be permitted if at least 40 per cent of the electorate turn out to vote”.

Again, that is wrong.

The position is that if less than 40 per cent of those entitled to turn out do so, it becomes an advisory referendum in exactly the same way. That deals with the critical issue: if there is a derisory turnout in favour of the alternative vote system, is it right that this country should then change its voting system, a voting system for which there would not be a majority in either House of Parliament? The legitimacy of a change of that importance must depend on getting more support for it than a normal change in the law, rather than less.

In my respectful submission to this House, it is pretty plain that this issue has not been properly considered either publicly or in the other place. It is pretty plain that it is a very important issue. It is pretty plain—and I pray in aid the very last speech we heard —that the argument in this House has been comprehensively won by those who support my noble friend Lord Rooker. In those circumstances, we on this side of the House will vote in favour of my noble friend's amendment.

[Lord Wallace of Tankerness]

My Lords, yet again, we have had a useful debate, with some powerful arguments made. I anticipated at the beginning of the debate that strong points would be made, but, nevertheless, we cannot depart from the central point. We are being invited to include in the referendum process a mechanism whereby, if a majority of the people vote yes, it will not necessarily deliver a yes outcome. I take the point made by my noble friend Lord Trimble. Although my noble friend Lord Forsyth was right to say that the 40 per cent rule in the Scottish referendum in 1979 is not the same as that proposed by the noble Lord, Lord Rooker, nevertheless, the point made by my noble friend Lord Trimble still holds. If people turn out and there is a yes vote, serious resentment would then be felt if somehow that was overturned by this House or the other House. At a time when we are trying to restore trust in the political process, to set aside the majority view of the people would be very serious.

The noble Lord, Lord Rooker, said that his amendment would not affect the outcome. I cannot accept that. It would not affect the result, but it could affect the outcome. Clearly, without his amendment, if there is a yes vote, the outcome is that the order would be laid to implement the system of an alternative vote for the next general election. His amendment could result in a different outcome, because if there was less than a 40 per cent turnout, it would not follow that an alternative vote would be used at the next election. Let us not shy away from the fact that his amendment would affect the outcome of the referendum in that important sense.

I take the point made by my noble friend Lord Lawson, who said that I had argued that it was a “stay at home” amendment. The “no” campaign could very well encourage people to stay at home to reduce the turnout. Because 84 per cent of the country will already be entitled to go to the polls on that day for the Scottish Parliament, the National Assembly in Wales, the Northern Ireland Assembly and local government elections in Northern Ireland and all parts of England bar London, if people want to vote no, we want them to turn out to vote no. We should not be giving people an encouragement to think that if they stay at home, they have the equivalent of a no vote, in as much as the yes vote may not bear fruit.

The Bill offers simplicity, clarity and certainty. It honours the promise to the electorate that they will decide how they return their representatives to the other place. They will do that as the result of a referendum without artificial barriers, without further complex, as yet undetermined, procedures and without political wrangling. It means that when they go to the polls on 5 May and want to vote yes, the outcome will not be “yes, maybe” or “yes if”. If they go to the polls to vote yes, it will count. Whatever the issues on the day are, their vote should be heard, listened to and given effect.

--- Later in debate ---

[Lord Desai]

My Lords, the Government have asked the Boundary Commission to fit 597 out of 600 seats within a 5 per cent margin either way. I have tried to argue before that, in terms of statistical distributions, this will be an immensely difficult task because a standard deviation of 1.7 per cent is too small.

If the Boundary Commission were allowed to fix 95 per cent of the seats within the Government’s favoured margin of 5 per cent and the remaining 5 per cent of seats—30, perhaps 25, seats—were allowed to fall under the amendment of the noble Lord, Lord Pannick, it would make the tasks of the Boundary Commission and the Government simpler. The noble Lord, Lord Pannick, has not tried to subvert anything the Government want to do; he has been very helpful in making it much easier for the Government to achieve what they want to achieve. Otherwise it will be very difficult to carry out the task.

[Lord Falconer of Thoroton]

This is also an important debate and, again, the question is whether or not we should ask the other place to think again. We on this side of the House think it is right that we should do so.

Again, there is an interaction of two issues: first, the extent to which the matter has been properly considered by the other place; and, secondly, the extent to which it is an important issue. On whether the Commons has had a proper opportunity to consider the issue, this debate was an hour long in the other place. In winding up for the Opposition, Mr Sadiq Khan pointed out that Mr Mark Harper had taken up two-thirds of the time available. Right across the debate there was the repeated theme that the Government were not listening and that there was not clarity about what was happening. I shall not quote from Labour Members but from coalition Members.

When addressing Mr Mark Harper, Mr Mark Field said:

“Does my hon. Friend not appreciate the concern that when we are discussing whether there should be any variance, be it of 5% or 7.5%, it is important to know how the process operates? … If we do not have at least a basic understanding of how it will operate, it will be difficult for us to make any value judgment as to where the variance should lie, which is the subject of amendment 19”.—[Official Report, Commons, 15/2/11; col. 864.]

That is what we are now talking about.

Mr Andrew George, a Liberal Democrat Member, said:

“Given the nature of some of the questions that the Minister has been asked in the past few minutes, does he agree that perhaps there should be an opportunity to review the wisdom of going ahead on the basis that he is describing?”.

Later again, the same Member—a coalition Member—went on:

“My hon. Friend is absolutely right, but I think that the inflexibility of the proposals will result in much more significant changes across the country … All I am asking is that the Government take a less intransigent and more flexible approach”.—[Official Report, Commons, 15/02/11; cols. 865-8]

One Labour Member is worth quoting. Mr Paul Murphy, who had a distinguished career and was Secretary of State for Wales, said:

“I do not understand why the Government and the Minister are being so rigid and fundamentalist on this issue”.— [Official Report, Commons, 15/02/11; col. 869]

The mood around the House, from reading Hansard, is that inadequate answers were given, that the Government were being unnecessarily rigid and that there was no proper understanding of how it would work. That is perhaps not surprising, because this amendment first saw the light of day—in the sense of it being passed by this House—a week ago today. The material in the other amendment is going back to the other place for further consideration. In my respectful submission, it would obviously be wrong if this did not go back with it.

Is this an important amendment? In my respectful submission it is. I do not know how many of your Lordships were present when the noble Lord, Lord Armstrong, told the story of Procrustes; or when the noble Lord, Lord Pannick, went through the detail of the work that he had done with the Government to get to a place with this extra 2.5 per cent. He was the only person in that debate—including the Government—who had done the work and thought through what the consequences were. For example, in relation to the point made by the noble Lord, Lord Butler of Brockwell, there are some wards that are so large that they will not be protected by 7.5 per cent, so obviously there will be even more wards that will not be protected by 5 per cent. The answer to the question put by the noble Lord, Lord Butler of Brockwell, is that more wards will have to be broken up under 5 per cent than under 7.5 per cent. I hope that blocks the retreat for the noble Lord, Lord Butler of Brockwell, at this particular point.

As far as the overall position is concerned, the noble and learned Lord, Lord Wallace of Tankerness, referred to the academics and the people involved in the area. Professor Johnston, the leading academic in relation to this issue, said he did not normally support public inquiries; however, what the noble and learned Lord, Lord Wallace of Tankerness, did not say was that he thought that, in the context of such a far-reaching change as is envisaged by this boundary review, there is a strong argument for the ability to make changes. Robin Gray, the former chairman of the Boundary Commission, said that some flexibility in addition to the 5 per cent was required.

In relation to the issues that were being considered in the previous debate, we considered the issue of judicial review in detail. Of course I respect the noble and learned Lord, Lord Mackay of Clashfern, in relation to the issues that he raised, but the noble and learned Lord, Lord Woolf and the noble Lord, Lord Pannick, both expressed the view that most judicial reviews, even on this, would fail. I also make the point that the courts, in looking at these issues, would be well aware of the deadline, which would be sometime in October 2013. These issues would arise during 2012, so the courts, in my respectful submission, would be well able to have timetables that would ensure that the deadline of October 2013 was met. They would not be faced with these issues late on in the process, but much, much earlier on. The application for leave for judicial review would take place at such a time that the court could deal with them quite smartly. The noble and learned Lord, Lord Scott of Foscote, made the point that hopeless applications for judicial review take time—which is absolutely true—but a court keen to meet a deadline set in statute would in my respectful submission be able to deal with that.

The final point dealt with in the debate in the Commons was the statement that it was not possible to craft a genuine exception—a point I should say that was not made by the noble and learned Lord, Lord Mackay of Clashfern, in this debate; but which was referred to by Mr Mark Harper, who cites a case called Al Rawi and others v Security Service, a case about the extent to which you can have a special procedure for terrorists. It is hard to imagine a case more different than the sort of case the courts would be dealing with here, and it may be an indication of the difficulty in finding support for that proposition. I do not ask that this House reaches a firm conclusion; all I say is that it is the right thing to do for this House to ask the other place to think again. That seems very little to ask. We support the noble Lord, Lord Pannick.

[Lord Wallace of Tankerness]

My Lords, once again I thank noble Lords who have participated in this debate on what is an important issue, as has been recognised many times during the passage of the Bill through your Lordships’ House. I start by picking up the points made by both the noble Lord, Lord Pannick, and my noble and learned friend Lord Mackay of Clashfern with regard to the lengthy delays in responding both to the report from the Political and Constitutional Reform Committee in the other place and to your Lordships’ Constitution Committee. I am not in a position to offer any explanation, but I do recognise that the time that was taken cannot have assisted either House and I therefore wish to apologise. Responding to the point made by my noble and learned friend, I will certainly take it upon myself personally to make sure that the comments made in your Lordships’ House—and indeed I will reflect the force of them too—will be conveyed to colleagues.

It has been argued that the role of the House in asking the other place to think again, and indeed in asking the Government to think again, has been well discharged in respect of these amendments. As has been acknowledged, the Government did engage to see whether there were ways in which we could find common ground and indeed there has been an opportunity for consideration in the other House. However, before inviting the House to send the amendments back again for further consideration, it is important that we perhaps reflect as to what this supreme constitutional principle that we are asking the other place to think about is. Is it just 2.5 per cent? One of the principles of the Bill, referred to by my noble friend Lord King of Bridgwater, is that of equal votes—one vote one value—as best we can throughout the United Kingdom. That is an important principle and one we believe is reflected in the Bill and which, bar the two issues that are now outstanding, has been accepted by both Houses. It is not slavish arithmetic, as I sought to explain. The 5 per cent variation, which gives 10 per cent in all, was not just conjured up—indeed my noble friend thought that it should have been lower than that. In response to the question from the noble Lord, Lord Butler of Brockwell, we believe that the 5 per cent is the closest we can get to achieving equality in the weight of a vote—I am repeating myself but it is important to do so—and an equal say for voters in the outcome of a general election while allowing the Boundary Commission for England to continue its practice of using wards as the building blocks of constituencies in England. I remind the House that the wards themselves are drawn up with local factors in mind.

The contribution of the now much quoted Professor Johnston, in his first session before the Political and Constitutional Reform Select Committee, noted that much local political activity and engagement was based on the ward structure. Crucially, the secretary to the Boundary Commission for England, in his evidence to that committee, said that under the rules in the Bill it would be possible to allocate constituencies using wards in the majority of cases. I did say, in my opening remarks, that an absolute prohibition on splitting wards would not be appropriate because there are some places—Birmingham is a case in point—where some wards are so large that it might not be possible not to split them. In these cases, the wards may even be so large that it might make more sense for local communities for them to be broken up to get a more readily identifiable sense of community. The basic point is that in the vast majority of cases it is believed that wards will be the building blocks for the constituencies in England. That is why the 5 per cent was chosen. We have yet to hear, with all due respect, a rationale for 7.5 per cent. I have sought to explain why 5 per cent is right and why there is a rationale behind it, but we have not yet heard a clear rationale for 7.5 per cent.

--- Later in debate ---

[Lord Falconer of Thoroton]

My Lords, I congratulate the Isle of Wight on this great achievement and the noble Lord, Lord Fowler, on the work that he has done to secure it. I wish the people of the Isle of Wight well in relation to the conclusion that has been reached. It is a decent outcome. It could have applied to other places but now is not the time to dwell on that. I wish the Isle of Wight good luck. I assume that the conduct of the Government in relation to the Isle of Wight prefaces a good result later in the day on the amendment that we passed earlier.

Motion C agreed.