Health and Care Bill

Lord Falconer of Thoroton Excerpts

Lords Hansard _ Part 1 & Report stage
Wednesday 16th March 2022 Lords Chamber

[Baroness Campbell of Surbiton (CB)]

My Lords, I am so thankful to be here tonight. It is a rare appearance but an important one and I am glad to be here in your Lordships’ House to oppose Amendment 170, which repeats the amendment that the noble Lord, Lord Forsyth, tabled in Committee. I apologise to the noble Lord for missing the first sentence of his contribution—I always enjoy his contributions and I am sorry to have missed the very first part.

This is a complex and highly contentious ethical issue. Opening the door to what is effectively assisted suicide would be a monumental change in the criminal law with potentially lethal consequences. If we get it wrong, it will result in some vulnerable people needlessly taking their own life.

The current Bill on assisted dying needs to be examined with the utmost care on the basis of highly informed opinion, robust evidence and a deep understanding of why hundreds of disabled people fear it. I do not think that we understand this cohort. I wish we did but we do not. We have seen a range of legislative developments in recent years in the UK and abroad, all of which demand detailed analysis.

Using this Bill to force the Government’s hand and the pace of deliberation on a matter specifically covered by an existing Bill is, I believe, as others do, a blatant manipulation of the parliamentary process. It sets a dangerous precedent and should be resisted. This is the wrong Bill, the wrong time and the wrong way in which to debate one of the most fundamental issues that we face as a society. I beg—yes, beg—noble Lords to reject the amendment.

[Lord Falconer of Thoroton (Lab)]

It is a privilege to follow the noble Baroness, Lady Campbell, whose contribution to the debate on assisted dying over many years is the admiration of all. I pay tribute to her and I know that the House thinks that as well.

I strongly support what the noble Lord, Lord Forsyth, is proposing for the following reason. We are trying to deal with an issue of conscience in Parliament. Issues of conscience generally have a bad time in Parliament because the major parties are not interested in such issues. You have to fight under our parliamentary procedures in order for issues of conscience to get dealt with. I completely agree with the noble Baroness, Lady Campbell of Surbiton, that this is a complex and difficult issue, but it is one that requires parliamentary time and, above all, Parliament to address the issue and make a decision.

I cannot convey adequately the mess that the law is now in. The law does not have the stomach to be enforced. Nobody wants a decent person who helps a loved one to die because they are having a terrible death to be the subject of prosecution, conviction and a possible sentence of 14 years. The law has been stood on its head and the Director of Public Prosecutions has been given the power to say that he will not prosecute if certain guidelines are followed. That means that the most basic principle of English law is subverted. It is not the judge and jury any more who decide whether you are guilty of the offence but the well-meaning and admirable Director of Public Prosecutions. If he says that you are not to be prosecuted, you are in the clear. If he says that you are to be prosecuted—remember you have assisted somebody to take their own life—you are guilty. He is making the decision. That reflects the way in which our society is trying to deal with the issue.

What we need is proper parliamentary time for parliamentarians to address this exceptional issue. I was a remainer, tragically, and was very much against all the strange ways in which Parliament operated. But this is an exceptional matter. The noble Lord, Lord Cormack, with respect, is not talking sensibly when he says that that we are sticking this matter on to the Commons. The Commons will have to decide whether they agree or not.

I urge this House to adopt the amendment, not because noble Lords agree or disagree on the issue of assisted dying but because they take the view that Parliament should properly address issues of conscience. Please do not be swayed one way or the other by the issues on assisted dying, because everybody knows that there are strong arguments in favour and against—I feel as passionately as those who are against. Address the issue on the basis of whether Parliament should be able to deal with issues of conscience.

[Baroness Butler-Sloss (CB)]

My Lords, it would be perfectly possible for someone in the House of Commons to raise this issue and deal with it there. What concerns me—I pick up what the noble Lords, Lord Cormack and Lord Howarth, said—is that this seems to be a constitutional issue. I am not going to say a word about the rights and wrongs of assisted suicide or assisted dying. However, I shall just read a few words of the amendment. It asks us to agree that the

“Secretary of State must, within the period of 12 months … lay before Parliament”


not just the possibility of a Private Member’s Bill being given time, which was what was suggested earlier, but a draft Bill. That is telling the Government what legislation they have to pass. This is a matter that transcends issues of compassion or whether one is on one side of the argument or the other, because what we in the Lords are telling the Commons is that they have to support us telling the Government to put forward a Bill with which they may not agree. But they do not have any choice if this amendment is passed. That Bill has to,

“permit terminally ill, mentally competent adults legally to end their own lives”.

The amendment is not asking the Government to please give time—I could understand that. It is telling, not asking, the Government to put forward a draft Bill in support of one side of the argument. Whichever side I was on, I would feel absolutely impelled to resist this amendment.

Coronavirus Bill

Lord Falconer of Thoroton Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Wednesday 25th March 2020 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

My Lords, I have tabled an amendment that in effect allows the Commons to sunset some clauses but allow others to go on before the two years are up.

If I may, I will put the timing into context. This is an important debate, because it involves identifying Parliament’s role going forward. At the moment, there is a sunset clause in Clause 89 that will bring the whole Bill, and all the regulations made under it, to an end after two years, except that under Clause 90(2) a Minister has the power to extend any of the regulations beyond the two-year period, and he can do that by a statutory instrument that does not have to be approved by Parliament before it has effect. That statutory instrument can last for 40 days before Parliament gets a view on it, and those 40 days do not include periods of recess, dissolution or prorogation. Under the Bill, therefore, the two-year period is subject to extension, on Ministers’ say-so, for a limited period. Even if we get to a point where the 40 days were up, they can produce another order and extend for another period.

We support the Bill, because the country needs the Government to have these powers, but we do so on the basis that it is subject to parliamentary control. That is the position in relation to the two years.

I support the idea of six-monthly reviews. At the moment, after the six-month period, if the House of Commons rejects a Motion that the Bill continue after six months, under Clause 68 the whole Bill and the regulations have to be brought out of force by the Minister. The way the Bill is drafted at the moment, it is an all-or-nothing provision. That cannot be right as a matter of practicality. As we move towards the end of the emergency, which we will, some of these provisions will be required—for example, the continuation of statutory sick pay, and preventing evictions, because people will not have got back on their feet financially. However, other powers should definitely go—for example, Ministers’ powers to close down premises, events and gatherings—as the need for those powers goes.

It is wrong that there is no provision for Parliament to say, “We want some of these powers to continue, but not others”. My anxiety about the current position of the Bill is that it can be extended over two years without proper parliamentary scrutiny, and can be brought to an end early—on the six-month basis—only on an all-or-nothing provision. Can the Minister assure us, first, that there will be no extension beyond the two years without parliamentary approval? Secondly, will he give an undertaking that if Parliament indicates by a vote that it wants some of the provisions to come to an end—and by Parliament, I mean the Commons—the Government will respect such a vote?

--- Later in debate ---

[Lord Tyrie (Non-Afl)]

I agree with everything I have just heard in support of these amendments. I hope your Lordships will allow me to say some of the things I would have said yesterday had I not been giving evidence to a Select Committee during the opening hour or two of the debate.

The UK is in lockdown. Of course, the pressure on the Government to act has been immense, but we are in very uncharted waters and tight sunset clauses are clearly appropriate. People are understandably fearful for their lives and their well-being, and the Government are right in response to that to try to flatten the peak to enable the NHS to cope and to address the fear that has grown in the wider public. The question now is not whether the lockdown was the right decision but for how long it can sustained. These amendments bear directly on that question.

I have two proposals that I think the Government might want to consider. They have a bearing on whether the sunset clauses might find themselves exercisable. We need to be clear why we have arrived in this position. The epidemiological evidence on which the lockdown decision was taken was very well summarised in the Imperial College paper, which shows that it is needed to prevent an 80% infection rate and between 250,000 and 500,000 impending deaths. What the paper does not contain is an analysis based on wider health outcomes or on wider economic and ethical considerations, as it readily acknowledges. In other words, the full health economics of this huge decision have not been developed or set out at all by the Government.

If, as is widely held, maintaining such a policy indefinitely is unsustainable socially and economically, it must follow, in the absence of an early vaccine or treatment, that an alternative policy will have to be put together very quickly. In order to establish that sustainable policy, we first need a wider analysis of the effects of the lockdown than we currently have in front of us on the basis of health economics, and in particular of the effect on morbidity and mortality that will come as a consequence of the disruption to economic life. Extensive research on earlier sharp interventions suggests that these effects could be very large, and this may be true for both the full and the partial lockdowns discussed in the Imperial paper.

A second piece of analysis that needs to be undertaken—

[Lord Falconer of Thoroton]

I very much apologise for interrupting the noble Lord, who is making an incredibly valuable speech, but after my amendment there is one more amendment, which was put down by the noble Baroness, Lady Ludford. We must get to it and debate it by 2.30 pm, which is jolly unfair, in a way. Can we get to that amendment and then perhaps have the Second Reading speech?

[Lord Tyrie]

I gladly agree to what has been proposed from the Labour Front Bench.

--- Later in debate ---

[Lord Anderson of Ipswich]

My Lords, I signed Amendment 13 and I offer two sentences on it. The amendment will have no legal effect because, admirably, nothing in the Bill seeks to oust or modify provisions of the Human Rights Act or the Equality Act. But if the Minister can confirm that there is no intention of departing from those important statutes, that would be a powerful signal to the sceptics and conspiracy theorists, both here and abroad, who might otherwise wrongly suggest that in enacting this unfortunately necessary legislation, we are abandoning some of the fundamental legal and moral principles that bind us together.

[Lord Falconer of Thoroton]

My Lords, as the noble Baroness, Lady Ludford, rightly said, we on these Benches support these provisions. I thoroughly endorse what the noble Lord, Lord Anderson, just said and it would be of enormous importance if the Minister gave the assurances that the noble Lord seeks.

[Baroness Kennedy of The Shaws]

My Lords, I too support the amendment and hope that the Minister will make appropriate noises about why this matters. Around the world, legislation is being passed in other countries that does not have these kinds of protections attached to it. We are seeing legislation going through in Hungary and, I am afraid, elsewhere, which will greatly erode the rights of the people living in those places. I strongly encourage the Government not only to say that the Human Rights Act and the Equality Act will be conformed to, but to ensure that those are firm instructions given to all those who will be exercising powers under this exceptional piece of legislation.

Earlier today, I sought to insinuate into this debate something about people in prison. I was surprised to find that there was no real reference to prisons in the legislation. But this morning it was mentioned that there is a problem inside the prisons—a number of people have already been diagnosed as having Covid-19—and so people are being confined to their cells. It was indicated that decisions might be made about releasing certain people from custody. Again, I ask that this is done in a way that conforms to the Equality Act and the Human Rights Act, and that real steps are taken with respect to fairness. I ask also that people in prison—who are not getting access to their families in the way that most people who are self-isolating can, through the internet and so on—are given the mechanisms to do that: to have virtual meetings and other mechanisms for contact with their families. At the moment, there is misinformation inside the prison system, and it is likely to cause a great deal of unrest. I urge the Government to be clear about the importance of conforming to human rights and equality standards.

Privileges and Conduct Committee

Lord Falconer of Thoroton Excerpts

Monday 17th December 2018 Lords Chamber

[Lord Butler of Brockwell (CB)]

My Lords—

[Lord Falconer of Thoroton (Lab)]

My Lords—

[Lord Macdonald of River Glaven (Non-Afl)]

My Lords—

--- Later in debate ---

[Lord Falconer of Thoroton]

My Lords, I make three short points. First, I adopt in full the speech made by the noble and learned Lord, Lord Mackay of Clashfern, in the first debate. He pointed out that we all promised to abide by this procedure, that the complainant in this case made a complaint in accordance with that procedure, nobody doubted that the procedure was followed and then, at the very end of the process, this House said, “Sorry, although your complaint has been justified by the terms of this procedure, we are changing the rules now”. It was not an attractive sight to watch. I agree with the noble and learned Lord, Lord Mackay of Clashfern.

Secondly, the wrongness of the view that we have to have the orotund procedure described by the noble Viscount, Lord Hailsham, is obvious to practically anyone who has experience of disciplinary complaints. I include in the names of people to whom it is obvious the noble and learned Lords, Lord Brown of Eaton-under-Heywood, Lord Hope of Craighead, Lord Irvine of Lairg and Lord Mackay of Clashfern—the people who are on our Committee for Privileges. The idea that there is some legal bar to having a process whereby we have an inquisitor who asks the questions of both sides, putting both sides of the case, is absolutely ridiculous. Do not judge that as lawyers: judge it as ordinary people.

My third point—and the thing that makes me most angry—is the hypocrisy of some noble Lords in citing Dame Laura Cox in support of their position. What Dame Laura Cox said was that members of staff in the House of Commons would never believe that they would get a fair hearing if Members of Parliament were involved in making the ultimate decision. What happened when this case came along is that someone who was in chambers with the person we were considering, someone who had been a friend of his for years and somebody who went on holiday with him for years all spoke on his behalf. Nobody spoke on the complainant’s behalf at all. The House then voted in favour of remitting it back to the committee. We should not regard the debate on 15 November as anything other than a sign of extreme hypocrisy.

The particular hypocrisy that I focus on is the fact that the reason it was remitted was because we focused on process and all of Lord Lester’s friends then voted to remit it, despite the fact that that was the most obvious breach of process. I urge the House, by what we say today, to give the fullest possible support to the noble Lord, Lord McFall, in what he has asked us to do.

[Lord Macdonald of River Glaven]

I wish to address the House for a few minutes only on a subject to which many noble Lords have alluded, which is cross-examination. I cannot claim the 50 years of the noble Viscount, Lord Hailsham, but I can claim 40 years at the Bar. During that time, I guess that I have spent hundreds of hours in adversarial proceedings cross-examining witnesses myself or watching co-defending counsel or opposing counsel cross-examining. That has been the greater part of my professional life.

Many noble Lords in this debate and in the debate last month have reminded the House of the famous dictum that cross-examination is the greatest legal engine for the discovery of truth ever invented. Of course it can be, and I have seen it so. I have seen liars unmasked, fraudsters exposed and terrorists cross-examined into confinement for decades. But my years of experience have also taught me that, like most aphorisms, this one is not able to paint the whole picture. Cross-examination can, of course, uncover the truth, but it can also obfuscate. It can advance a false prospectus, and it can intimidate. In adversarial proceedings, especially where freedom and forced confinement are in issue, its essential combativeness is indulged, but always and only under the watchful eye of a trained, professional judge.

I am sure that cross-examination can be one way to get at the truth, but I have never believed that it is the only way. In particular, I have never doubted that a diligent and fair inquiry by a competent tribunal, taking the necessary evidence, examining the relevant issues and asking the proper questions, is also capable of uncovering the truth. Tribunals proceed in this way every day, in this country and in other fair-trial jurisdictions around the world. The questions asked by a tribunal are, of course, a form of cross-examination in themselves, but cross-examination conducted in a more neutral, more objective manner, perhaps better suited to the inquisitorial style.

It is clear to me from the papers in Lord Lester’s case, which I have read, that the commissioner asked the complainant about all of the primary matters that might have been put in cross-examination: “Why did you go back to Lord Lester’s house?”, “Why did you dedicate the book to him in the way that you did?”, and so on. And the commissioner got her answers. It is true that these questions were asked in a gentler, more neutral way than might have been expected from a robust cross-examining lawyer, but there is no harm in that. Indeed, there are many situations in which this sort of low-key approach is more likely to get at what really happened, precisely because it occurs in a gentler, less aggressive environment. In my judgment, a disciplinary hearing, particularly where sensitive allegations of sexual misconduct are being aired, is certainly one of those situations.

Your Lordships could have mandated an adversarial disciplinary regime. I would not have recommended it, but you could have done so. This House could have mandated an inquisitorial system in which the participants were lawyered up, including for the purposes of cross-examination. Again, I would not have recommended this, but it could have been recommended. Even though both these things could have been done, they are emphatically not a pre-condition for a fair process. On the contrary, in my judgment, the process that your Lordships alighted upon was, for all the reasons that other noble Lords and the committee have set out, reasonable and fair.

Let me address one final thing on this subject, the standing of the commissioner. Lucy Scott-Moncrieff is a figure of the highest reputation in the legal world, a solicitor with a distinguished practice, a past president of the Law Society and a founding member of the Queen’s Counsel appointments panel. This House could hardly have selected someone more suited to the difficult task in hand, or more deserving of our trust. Your Lordships devolved to her the power to inquire fairly and thoroughly into the circumstances of Lord Lester’s case and to come to her reasonable conclusion on the evidence. That was her warrant. In my judgment, she discharged it faithfully.

Before I sit down, I wish to say one other thing briefly. During my five years as a public servant, as a prosecutor, my colleagues and I struggled endlessly against the sort of insidious stereotyping that bedevilled sex crime prosecutions. “Why didn’t she report it sooner? Why didn’t she distance herself more? Why was she wearing this? Why was she drinking that?”. In the end, we believed that we were making some progress, as judges repeatedly warned juries about the dangers of making stereotypical assumptions about the way that traumatised people react to the source of their trauma, warning them that they should not allow what may be little more than prejudice to cloud their judgment of the fact that an injustice has been done. Let us not find ourselves, in this House, moving backwards.

--- Later in debate ---

[Lord McNally]

Wait a minute. Read what she says. Why did she wait another seven years? She did so for political reasons, not for trauma. It is not outrageous.

[Lord Falconer of Thoroton]

Is it appropriate to undermine somebody who does not have a chance to answer? I invite the noble Lord to stop this now.

[Lord McNally]

I will not take any advice from the noble and learned Lord. He has already talked about hypocrisy; I bow to his expertise in that.

United Kingdom-European Union Future Economic Partnership

Lord Falconer of Thoroton Excerpts

Monday 5th March 2018 Lords Chamber

[Baroness Evans of Bowes Park]

I thank my noble friend for his comments. I entirely agree. It is important to remember that many regulatory standards are themselves underpinned by international standards set by non-EU bodies so we are certainly committed, and believe it is absolutely achievable, to ensuring that our relevant UK regulatory standards remain as high as the EU’s. As I have said, many of these standards are underpinned by international standards—for instance, the UN Economic Commission for Europe sets vehicle safety standards—set by organisations of which we will continue to be a part.

[Lord Falconer of Thoroton (Lab)]

I express my gratitude to the noble Baroness the Leader of the House for repeating the Statement. The prosperity of the nation is one of the principles that the Prime Minister referred to in both her Mansion House speech and her Statement to the Commons today. I assume, and I would be grateful if the noble Baroness could confirm this, that some economic assessment was made of what the impact would be of achieving all the things that the Prime Minister set out to achieve in her Mansion House speech. In that speech she set out what the UK’s negotiating position would be, recognising that we would have less market access than before. I invite the noble Baroness to confirm to this House that that work was done and to indicate when it will be published, because the nation is entitled to see it.

[Baroness Evans of Bowes Park]

As I said in my response to the noble Baroness and the noble Lord, yes, the Prime Minister has said that obviously we will have different access to the European market, but we are also committed to developing a broad and deep relationship with the EU and to having trade agreements elsewhere. We have committed to providing Parliament with appropriate analysis ahead of the final vote on the deal.

Iraq

Lord Falconer of Thoroton Excerpts

Friday 26th September 2014 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

My Lords, I am delighted to follow the noble Lord, Lord Hurd, whose authority and insight were evident in his remarks, with which I wholeheartedly agree.

I support the Government’s proposal to contribute to the air strikes within Iraq against ISIL in aid of the Iraqi Government’s defence of Iraq and its citizens. The question of whether further intervention is required, including in Syria, is for another day. Nothing should be ruled out. We should stand up to ISIL by using force to help those who are in the front line against it. There is no other sensible or just option.

I would not support the use of force by Her Majesty’s Government unless it was lawful under public international law. I have no doubt that it is and I will address this issue briefly. The use of force by one state in the territory of another state is lawful if authorised by the UN under Article 42, or in self-defence, or pursuant to the responsibility of nations to protect the citizens of another country who are the subject of mass human rights abuses from which their own Government cannot or will not protect them, or also when there is an immediate humanitarian emergency that is likely to be averted by the use of force. The precise parameters of this last possible basis for the use of force under international law are uncertain, but it exists and was the basis for intervention by Her Majesty’s Government in northern Iraq in 1991 and following, and in Kosovo in 1999. It does not require a UN resolution.

In this case, there is no Article 42 resolution. Self-defence requires no UN resolution. It includes collective self-defence. Where one country, at the request of another, comes to the aid of the requesting country in defending itself, the use of force by that other country—in this case our own—is lawful, provided that the force used is proportionate and is in response to an immediate threat to the country defending itself. Iraq has requested assistance, as the noble Baroness the Leader of the House has described. There is no doubt that there is a threat to the territorial integrity of Iraq and the lives of its citizens. That threat is real and immediate.

The force used in self-defence must be proportionate. That must be a judgment made on the ground, with which we should be extremely slow to interfere, as the noble Lord, Lord Hurd, indicated. We offer six Tornado aircraft, as well as continued surveillance, targeting ISIL’s military capacity in Iraq. It seems extremely unlikely, in the light of that contribution, that issues of proportionality will arise.

Collective self-defence—a basis for the use of force expressly preserved by Article 51 of the UN charter—provides clear legal authority in this case. This legal justification is uncontroversial and while, no doubt, there will be some who will seek to controvert it, it is not significantly in doubt. As for the “responsibility to protect” doctrine, I can see a very strong case for it being invoked. There are many who think it cannot be invoked without a UN resolution. But Iraq, in seeking the support of other nations in self-defence, is responding appropriately to the threat to itself and its citizens.

The right of countries to intervene with force in another country, under the “responsibility to protect” doctrine, arises where that country’s Government will not or cannot protect their own citizens. Where, as in this case, the Government genuinely seek the assistance of other countries to protect their citizens and the assistance obtained is likely to be a sufficient and proportionate response to the threat, and while the “responsibility to protect” doctrine may also justify intervention, the detail of that need not be examined because of the clear collective self-defence case. Similarly, that is also the case in respect of the immediate humanitarian emergency basis.

I have one final point. The constitutional course adopted by the Government in this case, in making and seeking Commons support for the decision, is right. The decision on whether to use force resides constitutionally with the Executive. There is, however, a constitutional convention that, under normal circumstances, the Government should seek the support of the Commons in their decision to use force, in advance of its use. Where that support is not forthcoming, force should not be used. That convention is not formalised in the sense of appearing in legislation or standing orders. To reduce it into writing would reduce its flexibility. But it exists and it should be given effect to. I congratulate the Government on giving effect to it. It is right that we are also recalled to give our views, but it is not us who have to endorse the right to go to war: it is the other place.

Parliamentary Voting System and Constituencies Bill

Lord Falconer of Thoroton Excerpts

Wednesday 16th February 2011 Lords Chamber

[Lord Hodgson of Astley Abbotts]

My Lords, I shall make a brief intervention. I did not participate in the debate this morning, although I did so at Report, 10 days ago, in a way that I am afraid my noble friend found slightly disobliging. I also voted in a disobliging way then and again earlier today.

I found the amendment of the noble Lord, Lord Rooker, persuasive on four grounds. First, as he has said when he moved it, we should avoid setting or reinforcing the precedent that referenda should not have thresholds. I do not like referenda. We elect Members to go to the other place to take difficult decisions and I think that referenda that decide important issues of public policy with small turnouts are doubly undesirable. The second reason for supporting the noble Lord’s amendment is that it sets the binding, mandatory threshold at a level that would command public confidence. It is the stickability and credibility argument. A 40 per cent turnout, at which 21 per cent, or one in five, will have had to vote in favour, seems to strike the right balance. Thirdly, the amendment means that if there were to be, as I fear there will be, substantially differential turnouts in different parts of the country because of the different types of elections taking place—parliamentary elections, Assembly elections and, in London, no elections at all—those for whom the referendum goes in the wrong direction need to be assured that there has been a reasonable overall turnout. I think that 40 per cent is that right level. Finally, the amendment is not a fatal amendment because the referendum would become advisory if the turnout was below 40 per cent. Indeed, the amendment in the name of the noble Lord, Lord Elystan-Morgan, would not have had my support because it sought to tie the hands of the Government, as opposed to enabling them to have the opportunity to consider the advisability of proceeding, when we knew what the final turnout was.

The amendment is being put forward once again by the noble Lord, Lord Rooker, in his normal robust and combative way—and it is none the worse for that. The noble and learned Lord, Lord Falconer of Thoroton, in his more silky and persuasive form, sought to raise the debate to a higher level and has made remarks such as that the amendment is in line with our parliamentary democracy and high principles. I hope that he will forgive me if I say that, when I see how his party has changed its voting position in the other place, there may be high principle, but there must be at least a whiff of political opportunism around the other Chamber.

We have now asked the other place to think about this issue twice and we have had a clear answer twice—by 70 votes last night and by 79 this evening, if my mathematics are right. We have heard a powerful speech from the noble and learned Lord, Lord Lloyd of Berwick. Whatever the rights and wrongs of the amendment, he was right to tell us that we are discussing an issue that focuses narrowly on a matter that affects the other place alone. Therefore, while I continue to have considerable and very grave doubts about the course on which my Government are embarking, I am afraid that I have now concluded, after two disobliging votes, that the time has come for the Members of the elected Chamber to make a final decision, because they alone will have to live with the consequences of their deliberations.

[Lord Falconer of Thoroton]

My Lords, it is for your Lordships to imagine what happened to the noble Lord, Lord Hodgson of Astley Abbots, between approximately 1 pm this afternoon and that rather unimpressive speech.

[Noble Lords]

Oh!

[Lord Hodgson of Astley Abbotts]

I described the noble Lord as “silky”. I withdraw that immediately.

[Lord Falconer of Thoroton]

And I withdraw the word “unimpressive” and apologise to the noble Lord, Lord Hodgson.

There are two issues for your Lordships to consider. First, are your Lordships satisfied that the issue is important enough to be referred back? Secondly, has it been considered properly by the other place? On the first matter, we have had many debates on the issue, which has been described as the most important constitutional change since 1832. The Leader of the House talked about fair values for fair votes and other things like that. He did not deal—just as Mr Harper in the other place did not deal—with the issue of a derisory turnout leading to a fundamental change in our voting system. That is the importance of a threshold; that is why it matters; and that is why it is at the heart of what is left between your Lordships and the other place. It is for your Lordships to determine whether the issue is important. I certainly regard it as important, and it is not without significance that it is the last issue that stands between this House and the other place.

The second issue, which is the one most relied on by the Leader of the House and the noble Lord, Lord Hodgson of Astley Abbots, is: “Well, we’ve asked twice; now is the time to subside”. The amendment was first passed in your Lordships' House last Wednesday. It went to the Commons this afternoon. It was debated for another hour. I have not been able to access Hansard to read the debate. I have had a report from my noble friend Lord Rooker, which the House has also had, on what was said in the other place in the debate. This is an important constitutional Bill. It seems wrong that we should make our decision on this important issue on the basis of a debate that we cannot even read in Hansard, eight days after it was raised for the first time last Wednesday.

Noble Lords opposite shake their heads and say, “Let’s just ram this through now at this 11th hour”. It is for your Lordships to decide whether this is the right course for the House, whose role is not to overrule the other place but to make it think again, to say that debating it twice in one day, eight days after the amendment was tabled, is consideration enough of whether 13 per cent of the electorate voting for a fundamental change in our voting system that all noble Lords in this Chamber know would not be—

[Lord King of Bridgwater]

My Lords—

[Lord Falconer of Thoroton]

I am not taking interventions. Thirteen per cent of the electorate could pass a change in our voting system that would not be passed in the other place. Is that an appropriate basis on which to make a fundamental change? Is there a country in Europe or a developed democracy that would allow its constitution to be changed on that basis? Therefore, this is an important matter.

We do not know what the Commons said, although I am sure that we have a very accurate report from my noble friend Lord Rooker. Should the Commons think again or should we rely on that eight-day period as being sufficient? In my respectful submission to this House, if we are serious guardians of the constitution, then eight days is not enough. A debate that we cannot read is not enough, and the issue is sufficiently important for us to ask the Commons respectfully to think again. Therefore, I shall support my noble friend Lord Rooker, whose judgment throughout this whole debate has proved impeccable.

Parliamentary Voting System and Constituencies Bill

Lord Falconer of Thoroton Excerpts

Wednesday 9th February 2011 Lords Chamber

[Lord Phillips of Sudbury]

My Lords, I hope to deal with this amendment quickly. It is a modest and practical amendment, and it is similar in effect to the amendment moved in Committee. I see that a number of Members of the House do not have a copy of this manuscript amendment and I hope that it will be in order for me to read it out:

“The Chief Counting Officer must take whatever steps the officer thinks appropriate to facilitate co-operation between that officer and the officers to whom sub-paragraph (3) applies in taking any steps under sub-paragraph (1) or (2)”.

The nub of the amendment is a desire to ensure that there is co-operation between all those who under paragraph 10 of the schedule have a duty to “encourage participation”. The regional counting officer is given that duty under paragraph 10; so, too, is every regional counting officer, every counting officer and every registration officer. Your Lordships may remember that, when I moved a similar amendment in Committee, there was support for it all around the Chamber, and the noble Lord, Lord Bach, was very generous in strongly supporting it. This amendment brings back that principle, and I have tabled it following very helpful discussions with the Minister and the Bill team.

I think that I need say little more. The point is that, under the Bill as it stands, no one is given the task of co-ordinating what could be extremely dislocated efforts to encourage participation. This amendment, as I said, simply states that, among the four groups of officials involved, the chief counting officer has the role of ringmaster in trying to maximise the encouragement of participation, because everyone in this House wants this referendum to engage as many members of the public as possible. That is the size of it. I beg to move.

[Lord Falconer of Thoroton]

My Lords, the manuscript amendment moved by the noble Lord, Lord Phillips of Sudbury, comes under the part of the schedule headed “Encouraging participation”. As I understand it, he wishes to place on the chief counting officer responsibility for co-ordinating the activities of a regional counting officer, a counting officer and a registration officer in performing their duties under paragraph 10 to encourage participation. It is very hard to see how anyone could object to that. I do not know whether there are any technical objections to the terms of the noble Lord’s manuscript amendment, but it seems a sensible measure, because there is no one in the House who does not want to encourage participation.

If there are technical problems with the manuscript amendment, I imagine that they could be tidied up at Third Reading on Monday. On the basis on which it has been advanced by the noble Lord, Lord Phillips of Sudbury, we support the principle of the amendment, subject to any difficulties that we have not foreseen to which the Minister may draw our attention.

[Lord Wallace of Tankerness]

My Lords, I thank my noble friend Lord Phillips of Sudbury for tabling the amendment. He gave a history of the debate in Committee. We agreed when he withdrew his amendment in Committee that we would have further discussions. I am pleased that we have been able to have those discussions. In Committee, the Government indicated that we were not persuaded that such an amendment was necessary. My noble friend and I have agreed that there was merit on both sides. Our meeting has added clarity. It has put the issue of co-operation right up front. The noble and learned Lord, Lord Falconer of Thoroton, has emphasised the importance of co-operation, with which we all agree, in trying to ensure encouragement of participation in the referendum, usbregardless of which side of the campaign one might be on.

It is a manuscript amendment. If my noble friend is willing to give us the opportunity to reflect on its wording, I very much hope to be able to come back to him with a definitive response during Third Reading. Perhaps he would be prepared to withdraw his amendment at this stage on that basis.

--- Later in debate ---

[Lord Phillips of Sudbury]

I hope that there was a clear implication that my noble and learned friend accepts the nub of the amendment and that it is just a question of technical jiggery-pokery.

[Lord Falconer of Thoroton]

I apologise to the noble Lord, Lord Phillips, for making two loud noises from a sedentary position, but his point was precisely that which was going through my mind about the noble and learned Lord’s response. It was not clear from what he said whether he would come back with something or whether he was just considering something. The response of the noble Lord, Lord Phillips, is exactly the response that I would have given.

[Lord Wallace of Tankerness]

If it helps, I very much hope to be able to come back with a very positive response to my noble friend. I just wanted to check.

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[Lord Strathclyde]

My Lords, this is a series of government amendments to deal with the issue of postal and proxy voting. They provide that anyone who registers or is already registered to vote by post, or has a proxy vote in a combined poll, will receive a postal vote for the referendum. They include, I fear, a long string of consequential amendments. Therefore, I beg to move Amendment 34A and will then move en bloc Amendments 34B to 34AS, with the leave of the House.

[Lord Falconer of Thoroton]

I am slightly at a loss. Roughly, in a sentence or two, what are they doing and why are they being done at Report?

[Lord Strathclyde]

I spoke in one sentence, and I thought that I was the object of clarity. Why are we doing it at Report? Because we did not spot it before. No doubt in those long days in Committee the officials were busily looking at these issues again and came to the conclusion that there needed to be some clarification.

The point is that an elector who is already registered for a postal vote for one of the polls combined with the referendum, and who is therefore entitled to vote in the referendum, is now as a result of these amendments, which I hope will be agreed, also automatically registered for a postal vote for the referendum. It is about dealing with the issue of the combination of the polls at the same time. It is designed to make life easier, and I am sure that the noble and learned Lord will agree it.

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[Lord Strathclyde]

My Lords, this is a small and technical amendment dealing with the definition of a qualifying party. I beg to move.

[Lord Falconer of Thoroton]

The obvious question is, “What are these for?”, but it is just too late at night to ask that—so don’t even get up to respond.

[Lord Strathclyde]

I cannot resist, because I know that it would be helpful to the noble and learned Lord if I tell him that this amendment is relevant only to Northern Ireland.

Parliamentary Voting System and Constituencies Bill

Lord Falconer of Thoroton Excerpts

Monday 31st January 2011 Lords Chamber

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

My Lords, from time to time I keep the House informed about progress on this Bill, and this is one of those occasions. As we start this, the 15th, day in Committee on the Parliamentary Voting System and Constituencies Bill, I am delighted to be able to inform the Committee that there is now agreement among the usual channels on a timetable for completing Committee. As a result of a series of productive discussions, the usual channels agree that Committee should be completed by the end of business on Wednesday this week. This is within the time that has already been scheduled and indicated on the Order Paper. I am sure that all noble Lords who have followed proceedings on the Bill, and perhaps a few who have not, will welcome a return to the effective functioning of the usual channels on the Bill, and I sincerely hope that this means that there is no longer any need for me to ask the Committee collectively to come to a resolution on how proceedings on the Bill should be regulated.

During Committee so far, the Government have held meaningful discussions with the Opposition and with a number of other Members of the House, in addition to debate on the Bill in the Chamber. As a result, the Government will bring forward a package of concessions on Report, and I am sure that the whole House will welcome that. Therefore, we are in the welcome position of having agreement to complete Committee by the end of Wednesday this week. Equally, I am sure I have no need to remind the Committee that we need to return this Bill to the other place by the end of Monday, 14 February—that is, two weeks today—if the referendum is to be held on 5 May. From the soundings that I have taken, I feel confident that the majority of Members from all parts of the Chamber share this aim.

[Lord Falconer of Thoroton]

My Lords, I am obliged to the Leader of the House. As he has said, we have agreed through the usual channels that Committee on the Bill should be completed at the close of business this Wednesday. This is the product of good discussions on the substance of the Bill over the weekend and today. Focusing only on the key issues on Report and employing the economy and focus which your Lordships will expect on Report and at Third Reading, the timetable will depend on further agreement between the parties on substantive issues. The Cross-Benchers have played a critical part in getting us to the good point that we have reached, and we now commit ourselves to work hard to try to reach the necessary further agreement.

[Lord Tyler]

My Lords, on behalf of a number of us who have been here for long hours into the night, I congratulate and thank those who have been involved in these discussions, not least the Convenor of the Cross-Benchers. I hope that this spirit of compromise will extend into the planning of Report, on which we might otherwise find ourselves in a repetition. I remind the noble and learned Lord, Lord Falconer of Thoroton, that he and his colleagues endorsed the working group of Labour Peers, chaired by the noble Lord, Lord Hunt of Kings Heath, which recommended that a reasonable time limit be set for all Bills to complete their passage in the Lords. I also remind the noble and learned Lord that in endorsing that recommendation, in a speech to the Labour Party conference on 29 September 2004, he said very wisely:

“The Second Chamber should have the powers to revise, to amend, to scrutinise, but not finally to frustrate the programme of a legitimately-elected government”.

--- Later in debate ---

[Lord Pannick]

My Lords, I have added my name to Amendment 94A. I agree with everything that has been said by the noble Baroness, Lady D’Souza, and the noble and learned Lord, Lord Woolf. I thank the Minister and Mr Mark Harper in the other place for the courtesy they have shown in spending time with me discussing possible amendments to crucial aspects of the Bill. I take the view—I know that I am not the only noble Lord who does so—that the Government are certainly entitled to get their business through this House. However, the Bill would benefit considerably from improvements to Part 2. I am delighted to hear from the Leader of the House that concessions will be brought forward. The Clause 11 formula of a 5 per cent band either way for an electoral quota is simply too rigid to allow for proper consideration of geographical considerations and local ties. It is wrong in principle for Clause 12(2), which we are now debating, to abolish the power of the Boundary Commission to hold a public inquiry.

The Boundary Commission process, including public inquiries, has served this country very well. It has maintained public confidence by a transparent process which has avoided even the suspicion of gerrymandering which blights so many other democratic countries. The Boundary Commission needs to retain some form of discretion to call for an inquiry, at least in those cases where it considers that it is necessary, with appropriate safeguards. I am sure that improvements can be made to the statutory scheme to promote efficiency and reduce delays but there really is no case for abolition. I very much hope, and expect, that the Minister will tell the Committee that this is one of those matters on which the Government intend to bring forward concessions.

[Lord Falconer of Thoroton]

My Lords, we welcome the amendment spoken to by the noble Baroness, Lady D’Souza, the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Pannick. The amendment to reinstate public inquiries into Boundary Commission proposals provides your Lordships’ House with an opportunity to start edging back from the precipice. It builds on an amendment moved by the opposition Front Bench which your Lordships debated last Wednesday. Although the Cross-Bench amendment that we are debating is more restrictive than ours, we willingly support it in the interests of breaking the deadlock on Part 2. It is a sensible and practical proposal for which we are grateful.

Clause 12 will, if enacted, abolish completely—indeed, it would go further than that and ban—the right to hold a local public inquiry into the recommendation of a Boundary Commission. The Government have chosen to put in the place of a public inquiry an extended consultation period by written submission of eight weeks. It is our submission that this is not an adequate replacement. Part of the function of a local inquiry is to provide people with a fair hearing and an explanation of why a proposal has been turned down. That is essential to the legitimacy of the process and we believe that it improves the decision-making process as well. Perhaps one of the most telling facts is that in every single case where the Boundary Commission was proposing significant changes, such as an increase or a decrease in the number of constituencies in a particular locality, its initial proposals were in every case amended following a public inquiry, so public inquiries are at their most valuable when the recommendations under consideration are the most dramatic. That fact is particularly salient in the context of this Bill which provides for a boundary review based on a reduction of 50 constituencies and the new set of rules dominated by a rigid electoral parity rule.

As the heads of the four Boundary Commissions have made clear, those factors mean it is inevitable that the next review will result in considerable changes to the electoral landscape, so considerable in fact that the Bill states in Rule 9(2), in Clause 11, that the Boundary Commissions are not permitted to take into account Rule 5(1)(d),

“inconveniences attendant on such changes”,

when conducting the forthcoming review.

They can take account of inconvenience in future reviews, but not in this first one.

As we debated in your Lordships’ House last week—I recommend that your Lordships read Hansard to see the relevant quotes—even psephologists who are sceptical about the value of public inquiries have said that on this occasion, in this context, they should be retained. Indeed, they have made the point that, while political parties have tended to be the major participants in inquiries, the scale of change that will be brought about by the next review is likely to provoke a much greater level of involvement by individuals and groups of local people. That is one of the reasons why we on this side of the House have not been willing to drop this matter.

I accept that there is a case for amending the current provisions in the Parliamentary Constituencies Act 1986 so that boundary commissions have some discretion about whether to go ahead with an inquiry, even where the basic threshold is met. However, the amendment proposed by the Cross Benches addresses that issue. The amendment that we moved last week provided that element of discretion. The variation on our amendment, tabled by the noble Baroness, Lady D’Souza, the noble Lord, Lord Woolf, and the noble Lord, Lord Pannick, has tweaked the drafting on that point and made the position clear. We are grateful for that.

There is also the point about judicial review, made by the noble and learned Lord, Lord Woolf, in the dead of night last week, which he makes again today. I will not repeat what he said, because he said it a lot better than I ever could. His intervention on Wednesday was a powerful one and I very much hope that the Government will listen to it.

The Cross-Bench amendment keeps our initial six-month limit on a local inquiry but states that no secondary inquiry should be allowed. Given that these are very rare in practice, we have no objection to that change in the proposal.

I hope that the Minister, in responding to this debate, will be able unequivocally to accept this amendment. It has nothing to do with partisan advantage. It is a practical proposal concerned with the legitimacy of the process for drawing constituency boundaries. Helpfully and constructively, the noble and learned Lord, Lord Wallace of Tankerness, confirmed last week:

“It is not a fundamental principle of the Bill that there should be no oral inquiries.”.—[Official Report, 26/1/11; col. 1070.]

We have high hopes that the noble and learned Lord will enable us to progress in this matter by broadly accepting the proposal in the Cross-Bench amendment. I support the amendment.

[Lord Mawhinney]

My Lords, in the spirit of the Chamber, I want to make two simple and quick points. I make a comment about the thought of a local inquiry not only from the experience of twice having my constituency rejigged through the process, but also from my experience as the chairman of our party a number of years ago.

Local inquiries can occasionally develop a life of their own. I wonder about the six-month limit because I can fairly easily foresee a legal argument arising out of a consultation that had not been satisfactorily concluded in this six-month period. I say to my noble friends on the Front Bench that I have some concern about the concept of a public inquiry in this context. Having said that, I add something that they may not welcome quite so much. I very much agree with the noble Lord, Lord Pannick, when he said that the Boundary Commission needed some “discretion”—I use his word. I hope—indeed, I think the whole House hopes—that the Government will find it possible to meet the spirit reflected in what the noble and learned Lord, Lord Falconer, has said and what I am saying in sympathy with what has already been said: that whether it is a local inquiry or not—and I have concerns about the concept of a local inquiry—there needs to be some element of discretion for the Boundary Commission.

Parliamentary Voting System and Constituencies Bill

Lord Falconer of Thoroton Excerpts

Wednesday 26th January 2011 Lords Chamber

Debate on whether Clause 11, as amended, should stand part of the Bill.

[Lord Falconer of Thoroton]

My Lords, I have two questions. First, in Clause 11, rule 7(1)(b) states that if the Boundary Commission,

“consider that having to apply rule 2”—

which I understand is the electoral quota—

“would unreasonably impair … their ability to take into account the factors set out in rule 5(1)”,

which are,

“special geographical considerations … local government boundaries … any local ties that would be broken by changes in constituencies”,

and,

“the inconveniences attendant on such changes”,

it is entitled to apply those factors, and in effect downgrade rule 2. What is the thinking behind the Government treating Northern Ireland differently, particularly having regard to the principle, stated and restated, of the need for equality in constituencies? We have not referred to that either at Second Reading or in any other debate. I ask of course because I am interested in Northern Ireland, but also to probe the principle underlying the Bill.

The second question relates to the review date. During the debates about electors who are missing from the electoral register, it was said that the date on which the register would be taken was December 2010. I assume that this comes from rule 9(2), which states:

“For this purpose the relevant version of a register is the version that is required by virtue of subsection (1) of section 13 of the Representation of the People Act 1983 to be published no later than the review date”.

Rule 9(5) on page 12 states:

“The ‘review date’, in relation to a report under section 3(1) of this Act that a Boundary Commission is required … to submit before a particular date, is two years and ten months before that date”.

Is it because the Government assume that the Boundary Commission will submit a report in October 2013 that the relevant register is that of December 2010? If the commission submits a report before October 2013, will the relevant register be a month earlier; and, equally, if it is submits it after October 2013, will it be a month later? The significance of this is that I understood from answers given by the noble and learned Lord, Lord Wallace of Tankerness, that the relevant date of December 2010 was rigidly fixed, whereas I understand that the way that the Act will work is that the register of two years and 10 months before the date of the report will be taken. If I am right in that surmise, how will the Boundary Commission know when it submits its report what the relevant register is? Those are my only questions on Clause 11 stand part.

[Lord Strathclyde]

My Lords, I thank the noble and learned Lord for raising his questions in the debate on Clause 11 stand part. It is worth reiterating that the clause reforms the arrangements for drawing constituency boundaries for the House of Commons. It provides that in future the Commons will be reduced to 600 seats, and that the rules for the distribution of seats will be recast so that seats will be more equal in size and allocated to each part of the UK in proportion to the electorate.

As the clause points out, two constituencies are specifically excepted from the parity rules. We know what they are and have discussed them at length.

The noble and learned Lord asked about the role of Northern Ireland. As he pointed out, the rules make special provision for additional flexibility to allow for constituencies outside of the parity range in Northern Ireland in the event that simple rounding effects make it difficult for the Boundary Commission in that part of the UK to recommend seats within the quota. That could arise if Northern Ireland only just missed out on being allocated an extra seat. I hope that that explains the thinking behind that.

It has also been suggested that the provision is flawed and that the Bill should provide for national electoral quotas. However, that approach would give rise to more variation between constituencies. A single UK electoral quota has the advantage of simplicity and clarity, and that provision will be triggered only in the event that rounding causes difficulty. It has also been suggested that the provision ignores a similar issue that may arise in Wales. However, as Wales has about twice the electorate and will therefore have about twice the number of seats, the problem is half of that in Northern Ireland. As such, there is no need to make similar provision.

As the noble and learned Lord pointed out, the boundary review will be based on the electoral register in force at the time of the review, and the first review will be based on the register in force on 1 December 2010. Previous boundary reviews have used the electoral register. The Bill's provision is no different. As we have discussed, the registration rate in the UK is between 91 and 92 per cent. Work is under way to ensure that the electoral register is as complete and accurate as possible—for example, freeing local authorities to identify people not on the register using existing public sector databases. The date of the register to be used is fixed because it is calculated by reference to the date on which the commissions are required to report, not the date on which they actually report, hence the difference.

In summary, these proposals make a modest reduction in the size of the Commons and will ensure that the principle of equality is given its proper weight in the commission's considerations, while ensuring that local factors can still be taken into account.

--- Later in debate ---

Moved by

[Lord Falconer of Thoroton]

91: After Clause 11, insert the following new Clause—
“Variation in limit of number of holders of ministerial offices
(1) The House of Commons Disqualification Act 1975 is amended as follows.
(2) For section 2(1) substitute—
“(1) The number of holders of offices specified in Schedule 2 to this Act (in this section referred to as Ministerial offices) entitled to sit and vote in the House of Commons at any one time, whether paid or unpaid, must not exceed 95 if the number of constituencies in the United Kingdom is 650.”
(3) After section 2(1) insert—
“(1A) If the number of constituencies in the United Kingdom decreases below 650, the limit on the number of holders of Ministerial offices entitled to sit and vote in the House of Commons referred to in section 2(1) must be decreased by at least a proportionate amount.”
(4) In subsection (2), after “subsection (1)”, insert “or subsection (1A)”.”

[Lord Falconer of Thoroton]

The amendment would reduce the number of paid ministerial officeholders in proportion to the reduction in the size of the other place. The text of the amendment is identical to an amendment moved in another place by Mr Charles Walker, the Conservative Member for Broxbourne. Before I come to the substance of the amendment, perhaps I may set out the relevant background.

Prior to the general election, the leaders of the Conservative and Liberal Democrat parties, now the Prime Minister and his deputy, made much of their determination to empower Parliament and enhance scrutiny and accountability of the Executive. In a lecture which many noble Lords will recall, delivered to the Institute for Government on 26 January 2010, Mr Nicholas Clegg declared:

“The Liberal Democrats believe this election is an opportunity to turn the page on decades of relentless centralisation within government. … I want to be clear: I am talking about a major reorganisation of Whitehall … As a result of our restructure the number of Ministers and government whips would be reduced from 119 to 73”.

Less than a fortnight later, on 8 February 2010, Mr David Cameron gave a lecture entitled “Rebuilding Trust in Politics” in which he said:

“We'd want to reduce the power of the executive and increase the power of Parliament even if politics hadn't fallen into disrepute … We’ve got to give Parliament its teeth back so that people can have pride in it again—so they can look at it and say ‘yes: those MPs we elect—they’re holding the government to account on my behalf’”.

I do not want to pretend that Amendment 91 would necessarily deliver our full aim. It is arguable that it is too timid to bring about the radical rebalancing that Mr Cameron and Mr Clegg had previously advocated. It does not reduce the size of the Executive; it merely stabilises the number of paid Ministers in proportion to the size of the House of Commons, from which the bulk of ministerial officeholders are drawn. It would do so by amending the House of Commons Disqualification Act 1975, which currently sets the maximum number of paid Ministers allowed to sit and vote in the other place at 95. If the House of Commons were to remain at its present size of 650 seats, the limit of 95 Ministers would remain. However, if the Government persist in their objective of reducing the number of MPs to 600, the amendment would ensure a pro-rata reduction in the number of paid Ministers to 87.

--- Later in debate ---

Amendment 91A (to Amendment 91) withdrawn.

[Lord Falconer of Thoroton]

My Lords, I am grateful for all the support around the House for Amendment 91. It was an amusing and vintage speech from the noble Lord, Lord Strathclyde. However, it is worth analysing two parts of it. First, he accepted the importance of the issue that the Bill proportionately increases the size of the Executive and decreases the number of those able to hold them to account. He said that we should not rush. No one is asking the Government to rush, because the reduction would occur precisely when the reduction in the number of MPs would occur.

Secondly, the noble Lord said that we could get round this by the PPS route. In the light of what the Government, and in particular Mr Clegg and Mr Cameron, have said, I would have thought that they would not do this because they are committed to the measure. He said that there was a “but”, and we thought that there would be something bankable. My noble and learned friend Lord Goldsmith asked what the Government were going to do about it. In this House, as in the other place, something is being looked for that would bring the thing forward. I have written down, “We will look at it”, and, “We will address the issue and do something”. It is very difficult to regard those assurances as having any reality.

As my noble friend Lord Rea said, our amendment would reduce the number of Ministers by eight. That is not many. It is hard to believe that it would affect the conduct of government—and my goodness, it would send a signal consistent with what has been said by Mr Clegg and Mr Cameron. It would be a very good thing for trust in politics if that could be done. I think that both the noble Lord, Lord Norton, and I will return to this on Report. I beg leave to withdraw the amendment.

Amendment 91 withdrawn.

--- Later in debate ---

Moved by

[Lord Falconer of Thoroton]

93: Clause 12, page 13, leave out lines 17 to 23 and insert—
“(2) A Boundary Commission may cause a local inquiry to be held for the purposes of a report under this Act where, on publication of a recommendation of a Boundary Commission for the alteration of any constituency, the Commission receive any representation objecting to the proposed recommendation from an interested authority or from a body of electors numbering one hundred or more.
(3) However, a Boundary Commission shall not be obliged to hold an inquiry if they believe that any objection received under the terms of subsection (2)—
(a) raises no substantive issues that might benefit from further comment or representation from other interested parties or individuals;(b) makes counter proposals which are prima facie out with the stipulations of the Rules for the distribution of seats contained in Schedule 2 to the 1986 Act.(4) A local inquiry held under subsection (2) must be completed within six months of the close of the consultation period referred to in subsection (1) above.
(5) Where a local inquiry had been held under subsection (2), a Boundary Commission may, after considering the matters discussed at a local inquiry, the nature of the representations received under subsection (1) and any other relevant circumstances, decide that a further local inquiry is not justified.
(6) If a further local inquiry is held, it must be completed within nine months of the close of the original consultation period referred to in subsection (1) above.
(7) In subsection (2) above, “interested authority” and “elector” respectively mean, in relation to any recommendation, a local authority whose area is wholly or partly comprised in the constituencies affected by the recommendation, and a parliamentary elector for any of those constituencies.””

[Lord Falconer of Thoroton]

My Lords, this is an important amendment about public inquiries. It is well known throughout this House and the other place what the Act does: it does not simply abolish the entitlement to a public inquiry; it prohibits a public inquiry, even though the Boundary Commission might consider that the most appropriate way in which to deal with issues that arise in relation to a proposed new setting of a boundary. Clause 12(1) inserts a new Section 5(2) into the 1986 Act which states that:

“A Boundary Commission may not cause a public inquiry to be held for the purposes of a report under this Act”,

and Clause 12(2) states that:

“Section 6 of the 1986 Act (local inquiries) is repealed”.

The old system of local inquiries is repealed, and a prohibition is imposed on the Boundary Commission concluding that it should have one.

We submit that this is damaging to the process and reduces its legitimacy in setting constituency boundaries. In our original amendment, we proposed to delete the subsection prohibiting public inquiries and to insert the wording relating to inquiries contained in the existing legislation. That would have put the Government at one end of the spectrum with their proposal to prohibit public inquiries and us at the other with a proposal to preserve completely the status quo. However, I believe your Lordships' House has expressed a very clear desire in recent days for both sides to work constructively for compromise on this Bill where there are differences of view. In that spirit of compromise and in an attempt to find common ground on this most important of issues, we withdrew our previous amendment and have tabled a revised version of our original amendment, which we believe addresses successfully the Government’s central concerns in relation to public inquiries. I am anxious to make it very clear at this point that we have genuinely sought to understand the Government’s reasons for abolishing and prohibiting inquiries, for it is only by seeking to understand their motivation that we can hope to come forward with a proposition capable of garnering broad support and encouraging the Government to accept public inquiries.

Mr David Heath, the Deputy Leader of the House of Commons, outlined the Government’s position during Committee stage in the other place last November. He stated:

“The Bill abolishes them for three major reasons. First, we simply must speed up reviews … The second reason why we are abolishing the public inquiries is that they do not achieve their purpose. They do not provide the boundary commissions with a good indication of local opinion to aid them in the process of drawing up constituencies ... The third reason for abolishing inquiries is that they rarely lead to significant changes in recommendations … The changes are frequently minor. For example, at the time of the fifth general review in England, only 2% of wards in counties where inquiries were held were moved between constituencies as a result”.—[Official Report, Commons, 1/11/10; cols. 729-30.]

I shall deal with the three points in reverse order. I submit that the weakest argument in favour of abolishing public inquiries at this time is that they rarely lead to significant changes. If we look at the last review in England, it is true that alterations were made in only just over a quarter of all parliamentary constituencies, but the context is all important. In every case where the Boundary Commission was proposing an increase or a decrease in the number of constituencies, its initial proposals were amended following a public inquiry. In many cases, such as Derbyshire, Sheffield, Greater Manchester, Merseyside and north-west London, substantial changes were made, and many times the Boundary Commission commented in the report that the recommendations of the assistant commissioner—the judicial officer who presided over the public inquiry—were improvements on their own.

The same is true in Scotland. A review of Scottish Parliament—not national Parliament—constituencies in 2007 based on very similar rules to those being proposed in this Bill led to the Boundary Commission recommending substantial changes to the electoral map. Your Lordships will recall the quote that I gave on the previous occasion from Sheriff Principal Kerr, who referred to the 10 substantial public inquiries that had had a significant effect on the drawing of the map of the Scottish Parliament constituencies. Thousands of objections and a rash of local inquiries resulted in major alterations being made to the original recommendations. As your Lordships have already heard, if the next UK boundary review takes place on the basis of the proposed new rules, alongside a reduction of 50 constituencies there will inevitably be widespread disruption to the electoral map of the UK. That prospect prompted Robin Gray, who was the former chair of the Boundary Commission for England, to say to the Political and Constitutional Reform Select Committee:

“Particularly with this first round I can see there is a real need for public inquiries particularly to enable those who are interested, political parties and others, to actually argue this through because these are going to be big changes”.

Those remarks were echoed by Professor Ron Johnston, who is generally sceptical about the value of public inquiries but who told the committee that the scale of the proposed changes,

“is an argument for having public inquiries this time because you are drawing a totally new map with new constituencies and nearly everything will be different … local people are going to be concerned because suddenly the pattern of representation is going to be very different from what they have been used to for a long time”.

Likewise, Mr Lewis Baston of Democratic Audit has commented: “The banning”—he was right to use that word—

“of public inquiries is a severe and deplorable downgrading of public participation and transparency in the boundary process”.

There is then a powerful, principled argument for retaining public inquiries, especially in the context of a proposal fundamentally to alter the composition of the constituencies that make up the other place.

None the less, it is plain that we should recognise that there is an argument for controlling properly the extent to which public inquiries are used. We have therefore revised our previous amendment and now propose that the Boundary Commission should not be obliged to hold a public inquiry even where the threshold for triggering an inquiry has been met and that threshold is either a representation from an interested authority—essentially, a local authority—objecting to the proposed recommendation or electors numbering 100 or more. Even if the Boundary Commission received those objections which satisfied the condition for holding a public inquiry, if it judged that the issues raised were not substantive or constituted counter proposals which would infringe the general rules on the distribution of seats—that is, if it was plain that there was no real issue or if there was a strict rule that prevented any change—it could conclude that there should not be a public inquiry. The Boundary Commission would therefore have the power to say that it would grant an inquiry only when the representation was of real value and the condition was satisfied. That would go a long way towards dealing with the concern that inquiries would be used unnecessarily.

I shall address the second of Mr Heath’s criticisms, the charge that inquiries do not provide a good indication of local public opinion. The allegation here is that they engage only political parties. That charge loses a great deal of its weight in the context of the next review, which, as has been repeatedly mentioned, is so significant. We have already witnessed huge—I use “huge” advisedly—numbers of representations made; for example, in relation to Cornwall and the Isle of Wight. Strong public interest was aroused in both those areas, in part because it was already known that the new rules would have a particular effect either on the Isle of Wight—the island would be split into two and joined in part to the mainland—or on Cornwall, where there is very strong feeling about crossing a boundary.

Once the provisional recommendations for boundary changes are published, we are likely to see very considerable objection to them. I remind your Lordships what the four secretaries of the Boundary Commissions have warned,

“the application of the electoral parity target is likely to result in many communities feeling that they are being divided between constituencies”.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I thank the noble and learned Lord, Lord Falconer of Thoroton, for introducing this amendment and for the very helpful and constructive spirit in which he proposed it. I also thank the other noble Lords who made important contributions to this relatively short but important debate.

The amendment seeks to introduce a public inquiry stage into the boundary review process, allowing the Boundary Commissions to hold a public inquiry where representations are received from any interested local authority or from 100 or more interested electors.

As we made clear in our response to the amendment of the noble Lord, Lord Lipsey, in the previous debate, and in our responses on local government ward boundaries and existing parliamentary constituencies, the Government's position has been that we are open to considering reasonable improvements to the process, provided that they do not compromise the fundamental principles of the Bill, and that still remains our position.

It is not a fundamental principle of the Bill that there should be no oral inquiries. The decision to end the process of oral inquiries, which appears in this Bill, was in fact taken on the basis of the evidence before us, when we came to consider the most effective consultation process for boundary reviews, which is what we are all trying to achieve.

Among the many contributions that we have heard not just this evening but over a number of Committee sittings, the case has been made tonight that local inquiries are an important safety valve because they allow everyone, as we might put it, to have their day in court. The noble Lord, Lord Brooke of Alverthorpe, made that very point. It allows people to have their say. My view is that this is perhaps the only objective of local inquiries: for which any credible argument can be mounted in their favour. Evidence and academic opinion indicate that local inquiries are perhaps far more effective in principle than in practice.

Local inquiries do not as a rule consist of the general public having their say on boundary proposals. Professor Ron Johnston—whose namechecks in these debates are now getting quite considerable; the noble and learned Lord, Lord Falconer quoted him—and his colleagues have concluded that the public inquiry process is “dominated by political parties”, describing the process as,

“very largely an exercise in allowing the political parties to seek influence over the Commission's recommendations—in which their sole goal is to promote their own electoral interests”.

Of course, he is perfectly right; political parties play a vital role in our democracy, and there is nothing wrong with parties contributing fully to the boundary review process. It is inevitable that they are going to do that, but if we are considering what would be gained by the noble and learned Lord’s amendment, which would restore oral inquiries in some form, we should not imagine that we would necessarily be giving the public a better chance to have their say. We would be looking to restore a potentially long process to which parties will send Queen's Counsel in their attempts to secure the most favourable outcome for their electoral prospects, certainly if history is anything to go by. It may be that the quasi-judicial nature of the local inquiry process could act as a disincentive to public participation by ordinary people who hope to have their say.

Our intention is that a written consultation process, with the existing period for representations extended from one month to three, will actually amount to a much more effective way to allow a level playing field for the general public who wish to have their say. Whatever the merits of the cases that are made for exceptions in this Bill—for example, for the Isle of Wight—I do not think that anyone could doubt that the people involved were very successful in making their voices heard through petitions, campaigns and websites.

There is little evidence, too, that local inquiries bring to light evidence that would not otherwise be considered. In an earlier debate in Committee, the noble Lord, Lord Snape, gave us an example of when a public inquiry had changed the boundary of the West Bromwich East constituency to reflect local geography, using a dual carriageway in place of a defunct railway line as a point of orientation. I am sure that that was a sensible change, and I wholeheartedly agree with the noble Lord that local knowledge is immensely important in these matters, but I do not see why that could not have been raised as part of an extended consultation period, as proposed by this Bill.

That is why changes that are made following local inquiries are often minor. At the fifth general review in England, for example, only 2 per cent of wards in English counties where inquiries were held were moved between constituencies as a result. Robin Gray, a former boundary commissioner already quoted by the noble and learned Lord, Lord Falconer, told the Political and Constitutional Reform Committee that Professor Ron Johnston was,

“absolutely right about the impact that public inquiries had on the Commission’s initial recommendations. In a lot of cases there was no change”.

The evidence given by the Boundary Commission for Wales to the Welsh Affairs Committee is also instructive on this point. In evidence to the Welsh Affairs Committee, the secretary of the Welsh commission said that,

“during the fifth general review, there were four issues that the Commission changed its mind on as a result of the consultation process. Perhaps I should say that, while these issues were raised in the local inquiries they were also raised beforehand in the written representations. In one sense, the Commission, before the local inquiries, had in its mind that modifications were required in the draft proposals”.

That brings me to the evidence of Ron Johnston before the Political and Constitutional Reform Committee, which was quoted by the noble and learned Lord, Lord Falconer. Professor Johnston, as we have acknowledged, has been much quoted in these debates. I think that anyone reading his evidence and his previous work will reach the same conclusion that the committee reached in its report that the result of Professor Johnston’s extensive research into the topic, and oral inquiries in particular, led him to,

“generally welcome the abolition of public inquiries”.

I stress that, not because somehow Professor Johnston’s view is the only one that counts, but because it dispels the theory that only we on the government Benches somehow hold the view that oral inquiries are not necessarily the best way to achieve the objective that we all want, which is a robust consultation process at which everyone, including those who are not able to appoint legal counsel on their behalf, can have their say on a commission’s proposals.

However, in the same session, Robin Gray stated that he believed public inquiries added value because they provided assurance that the,

“issues have been looked at and debated”—

perhaps an echo of the point made by the noble Lord, Lord Brooke.

One charge that cannot be laid against oral inquiries in the past is that they were anything less than thorough in this regard. This lengthy process, however, goes to the heart of one of the key principles in the Bill, which was identified by the noble and learned Lord when he moved his amendment. If no action is taken the boundaries in force at the next general election will be 15 years out of date, if we do not proceed to get a boundary review and report by October 2013, as set out in the Bill. We believe that it is simply not fair to electors—most notably all those who have come on to the register in the past 15 years. I believe that noble Lords opposite share our concern about this. Indeed, the noble and learned Lord, Lord Falconer of Thoroton, made that very point. I readily acknowledge that the amendment attempts to address it by limiting the triggers for inquiries and placing a limit on their duration, and I very much welcome how that has been presented by the noble and learned Lord.

It is also important that we listen carefully and reflect on what was said by the noble and learned Lords, Lord Woolf and Lord Goldsmith, not least on the question of judicial review—judicial review if you do not have oral inquiries and judicial review if you do have oral inquiries. There is an argument that the proposal in the amendment to give the Boundary Commission the decision on whether to hold an inquiry in each constituency where the requirements in the amendment are met would also lead to a risk of judicial reviews of the Boundary Commission’s decisions on that point.

Important issues have been raised. I have indicated not just in this debate but in others that the principle should be that reviews must be conducted more quickly so that the pattern of representation in the other place represents the reality of where electors live now, not of history. That goes to the heart of fairer and more equally weighted votes throughout the United Kingdom, which is a core objective of the Bill. We will obviously want to consider the noble and learned Lord’s concerns on the issue of judicial reviews—as I have said, if you have them or if you do not have them. Subject to meeting the key principle, which I have indicated, I am content to take the noble and learned Lord’s amendment and consider the thinking behind it to see whether it offers a way in which the advantage that I acknowledge an inquiry can provide—a sense of “a day in court”—can be retained. On that basis, I urge the noble and learned Lord to withdraw his amendment.

[Lord Falconer of Thoroton]

I am very grateful for a very positive response. I shall deal with a few points so that people can read them in Hansard.

First, the noble and learned Lord is right to say that Professor Johnston, who is an expert in this field, has expressed scepticism from time to time about the public inquiries in some contexts, but he has said that the scale of the proposed changes in the first boundary review is an argument for having public inquiries this time because you are drawing a totally new map. Without being unfair, or selecting out of context, Professor Johnston is in favour in this context. He also referred to Robin Gray, the former chairman of a Boundary Commission, who has a rounded view of public inquiries and recognises problems with them. Robin Gray says:

“Particularly with this first round I can see there is a real need for public inquiries”.

Therefore, the two witnesses that the noble and learned Lord cites both unequivocally favour public inquiries in this context.

Secondly, the way that this amendment is put is not as an alternative to written submissions, because it accepts that in the appropriate case written submissions would be sufficient. I draw attention to subsection (3) in the amendment, which says that the Boundary Commission can say no to a public inquiry if it raises no substantive issue that might benefit from further comment or representation from other interested parties or individuals. So the Boundary Commission would have to decide that there is some specific benefit in an inquiry. In relation to the timing, we have dealt with that already.

It is, with respect to the noble and learned Lord, difficult to see—and I am not going to press this too hard—why an inquiry should not be in the armoury in the appropriate case. He mentioned the fact that it is often about political parties vying in their own political interest. I am sure that is true. One of the things that we have often discovered in our system is that hearing two competing parties often produces the right result more easily through oral representations than through any other process. It is the process—without in any way saying that this should be exactly the same as a court process—that many of our courts have found the most effective way to come to the right answer.

I very much hope that when the noble and learned Lord considers it, he will come back and either suggest how it might be improved or accept the amendment. On the basis of the helpful and constructive commitment to consider the amendment, I beg leave to withdraw it.

Amendment 93 withdrawn.

Parliamentary Voting System and Constituencies Bill

Lord Falconer of Thoroton Excerpts

Tuesday 25th January 2011 Lords Chamber

[Lord McAvoy]

My Lords, I suspect that not for the last time in the debates this evening I take a different point of view from my noble friend Lady Ramsay of Cartvale. The relevance of that is to do with her comments on the record of the Scottish Constitutional Convention. She says that it is relevant to what we are discussing now because it has been quoted as an example or a way of working or because the information that came from it is relevant. I do not wear quite the same rose-tinted glasses in relation to that organisation. I did not intend to speak, but as usual I failed to resist my annoyance—no, that is too strong a word and I would not say it, or not in your Lordships' House—or my reaction to the jibe from the noble Lord, Lord Tyler, about the time that noble Lords are taking to revise and review the legislation. I hope that nobody on any side of the House is intimidated by these continual jibes. We are here to revise and, I hope, to improve the legislation.

I bring myself to the relevance of the Scottish convention’s record, to which my noble friend referred. Once again we had a situation where the great and the good got together and where everybody was all caught up in an atmosphere of being nice to each other and trying to work together for Scotland. I do not criticise that, as it was with the best of intentions, but in doing so they allowed the Liberals to sucker them because the Liberals gained more out of that system than anybody else. They gained an infamous list system—infamous is the right word—of electing MSPs in Scotland. It is not even just about electing them. These list MSPs, especially the Liberals, wander all over the Westminster and Scottish Parliament constituencies, plucking the cases that suit them for political purposes and ignoring the rest. Also, instead of concentrating on the regions which they supposedly represent, lo and behold, guess where they seem to spend most of their time? Again, this is especially the Liberals. It is in the constituency where they stood as a first past the post candidate. We should not let anyone get carried away, in my opinion, by the eloquent words of my noble friend Lady Ramsay of Cartvale because it is just not right.

I also tell my noble friend Lord Foulkes of Cumnock that I am still not quite sure about the primacy that his amendment would seek to give the Boundary Commission—advice or guidance on taking more account—because the Westminster constituencies are the true measures of how the commission should go about its work. The noble and learned Lord, Lord Wallace of Tankerness, made a relevant point. There are indeed many communities, or more communities than one, in a Westminster constituency. The one that I know best, Rutherglen and Hamilton West, has about five or six with the three core ones being, as I have said before, Rutherglen, Cambuslang and Halfway. I have to tell my noble friend that I am not convinced that the Scottish parliamentary constituencies are the real thing to take account of here. I remain to be convinced. I may come back in again once I hear from the noble Lord the Leader of the House, with the benefit of his experience, and my own Front Bench but at this stage I certainly reserve my position regarding my noble friend's amendment.

[Lord Falconer of Thoroton]

My Lords, this amendment, put down by my noble friend Lord Foulkes of Cumnock, proposes that:

“The Boundary Commission for Scotland may take into account the boundaries of constituencies of the Scottish Parliament”.

Three specific points emerge from this amendment. First, it is worth while to look at the experience of the Boundary Commission for Scotland in dealing with the drawing of the boundaries for the Scottish Parliament. The experience of those involved in public inquiries was that the rules were “too rigid”. The rules, although much more rigid than previously, are less rigid than the current rules.

Sheriff Principal Kerr, who conducted a public inquiry into the West of Scotland constituencies, said that the Act,

“introduced a rigidity which had not previously existed”,

and, in the foreword to his report, said:

“Too little attention has been paid in my view to local authority boundaries, to geographical considerations, to inconveniences resulting from proposed constituency changes and to the sundering of local ties; and too much emphasis has been laid on the requirement (although qualified by the other rules)”—

which is not the position here—

“of Rule 2 that numerical proximity to the electoral quota be achieved. This consequence”,

the Sheriff Principal said,

“came out very clearly in the present inquiry and it is I think necessary to remedy it so far as reasonable, at least for the West of Scotland, in order to avoid the continuance of a sense of grievance which appears to be widely or even universally felt in some quarters”.

Point number one: the effect of too rigid rules is, in the view of Sheriff Principal Kerr, to create a sense of grievance.

--- Later in debate ---

[Lord Foulkes of Cumnock]

Seventy.

[Lord Falconer of Thoroton]

There are 70 in relation to the Scottish Parliament, so while they cannot be coterminous it must be sensible, as far as possible, not to try rigidly to make them coterminous but to have regard to them. I hope that the prescient words of the noble Lord, Lord Tyler, who said, “Shut up and listen and you might make some progress”, might mean that the noble Lord, Lord Strathclyde, will say that he will accept this amendment, because it seems sensible to me. Then we will regret not having followed the advice of the noble Lord, Lord Tyler, because it may be that talking too much has cost us the warm opinion and the change of the noble Lord, Lord Strathclyde.

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

My Lords, that was interesting and, by the standards of this Committee, a relatively short debate, so I will try to be as accommodating to the noble and learned Lord as the Government were to my noble friend Lord Tyler. I thought that the point which my noble friend was making, which was very sensible, was that we did not necessarily need to listen to everybody who had once represented a Scottish constituency to get the point being put forward—although it was useful to hear from other noble Lords. The noble Lord, Lord Foulkes, was right. He was indeed the MP for my part of the world for some years. We worked together but it was, on the whole, on opposite sides. He was rather more successful at it than I was, unfortunately.

The noble Lord, Lord Foulkes, asked a specific question about how the formula will work and how many seats there will be in each nation. It obviously depends on the estimates that will take place in each nation but if the calculation were to be run on the basis of the register as of 1 December 2009, Scotland would have 52 MPs, England would have 503, Wales would have 30, and Northern Ireland 15. However, I want to emphasise that these allocations may change, depending on the electorates in each nation. That is clearly understood.

What the noble Lord is after here is to add a fifth factor into the existing four in the Bill that the Boundary Commission may take into account. The Boundary Commission has indicated already that it takes into account issues which are brought to its attention as part of the public consultation process, if it believes them to be significant—that is the key. For example, the Boundary Commission for England said in its fifth general review, published in 2007, that, where practicable, it took into account district boundaries. The report noted:

“The Commission have previously recommended constituencies which recognise both metropolitan and non-metropolitan district boundaries, where it is practicable to do so, but often it is necessary to cross district boundaries in order to avoid excessive disparities. It is expected that this will be the situation during this general review but, of course, each review area will be treated on its merits”.

That was the Boundary Commission for England in 2007.

What this means, if I may translate, is that anyone could make a representation to the Scottish Boundary Commission arguing that an element of Scottish parliamentary constituency boundaries constituted a significant factor to take into account when settling Westminster constituency boundaries. There would be nothing to prevent the Scottish Boundary Commission taking that into account. In this sense—I am trying to be helpful to the noble Lord—the intention that underlies his amendment would be achieved by the way in which the Boundary Commission has always worked, without the need to amend the Bill. The significant change which the Bill makes, as the Committee now knows, is the requirement to prioritise the “5 per cent above or below electoral parity” rule over other factors. There is nothing in the Bill that we think would cause the Boundary Commission to change the way in which it considers any factors brought to its attention in representations from local authorities or members of the public, including precisely the kind of things raised in the noble Lord’s amendment.

I expect that I have disappointed the noble Lord in not accepting his amendment, but I hope that I have said enough for him to feel satisfied that it would not make very much difference if we did not accept it. I hope that he will withdraw it.

--- Later in debate ---

Moved by

[Lord Falconer of Thoroton]

79A: Clause 11, page 10, leave out lines 23 to 30 and insert—
“Whole numbers of constituencies(1) The following shall be allocated whole numbers of constituencies by whichever Boundary Commission is responsible for them—
(a) Orkney Islands and Shetland Islands council areas;(b) Comhairle nan Eilean Siar council area;(c) Argyll and Bute council area;(d) the Isle of Anglesey county area;(e) the Isle of Wight county area; (f) the County of Cornwall and Isles of Scilly council areas;(g) the Highland council area.(2) The number of seats to be allocated to each area shall be determined by dividing the electorate of the area or areas concerned by the United Kingdom electoral quota and rounding to the nearest whole number, and each area must be allocated at least one whole seat.”

[Lord Falconer of Thoroton]

I apologise for arriving late. The Government have consistently argued that the core principle underpinning their proposed new rule for drawing parliamentary constituencies is equality. The Bill is designed within a very narrow tolerance to create equal-sized seats. We agree with the principle of creating more equally sized seats but, as we have consistently pointed out, the Bill sets about that objective in a way that we regard as in many respects clumsy and unfair. As we have heard—and, I think, we will continue to hear—the Bill’s aim to equalise seats will be done on the basis of an unequal electoral register and in a way that will override all other factors, such as geography, community and history, that ought to be taken into consideration when designing patterns of representation.

A curiosity about the Bill, however, is that, while the principle of numerical equalisation is deemed to be the trump card in almost all cases, there are some circumstances where the iron law of uniform statistics has been disregarded. For example, a new rule on the maximum territorial extent of a constituency has been set out in the Bill, accompanied by a clause to free at least one Scottish highland seat from the requirement to adhere to the electoral quota.

Alongside that, in the proposed new rule 6 in Clause 11, is a further exemption from the electoral quota. Two Scottish island seats, Orkney and Shetland and the Western Isles, are to be preserved in perpetuity. Despite having substantially fewer electors than the proposed new quota of 75,800—in the case of Orkney and Shetland, the electorate is around 37,000 and in the Western Isles just 21,000—these constituencies are deemed to warrant a special status in the Bill.

Some of your Lordships and Members of the other place have taken the view that this carve-out is unacceptable. We have already heard the view of Mr Andrew Tyrie, the Conservative MP who is often described as the brains behind the boundary review policy. He did not favour any exemptions when he produced his pamphlet on redrawing constituencies in 2004. In Pruning the Politicians, he wrote that,

“‘special geographical considerations’ ... should be abolished … The principle of equal representation is too important to be compromised by get-outs”.

I disagree with Mr Tyrie. I agree that we should create more equally sized seats, but we should do so in a way that continues to allow factors other than pure statistics to influence the shape of constituencies. There are occasions when the goal of equal numbers ought to be compromised in order to take into account other considerations such as geography, history and community. The two Scottish island seats that are specific exceptions in the rules are a case in point; I accept them as sensible exceptions. The question for this House is whether they should be the only case.

The Government do not think so. They have also made special allowances in the Bill for the Scottish highlands to escape the principle of equal numbers through the size exceptions. Your Lordships’ House does not think so either, as it demonstrated last week in the vote on the submission of the noble Lord, Lord Fowler, regarding the Isle of Wight. In addition, the Government have exempted the whole of Northern Ireland from the principle of equal representation. Rule 7(b) explicitly states that the Boundary Commission for Northern Ireland may disapply the electoral quota rule if it considers that the rule would “unreasonably impair” its ability to take into account factors including geographical concerns, local ties and so on, listed in rule 5(1) of the new proposals.

That said, Orkney and Shetland and the Western Isles are the only specific constituencies named in the Bill, as it originally came to this House, as having a preservation order. Mr Mark Harper, the Minister for Constitutional Affairs in the other place, said that they have been afforded that special status because they have “unique geography”. That seems to be a difficult and unsatisfactory basis for their inclusion in the Bill and for others’ exclusion. Many constituencies would argue that they, too, had “unique geography”.

Mr Harper was presumably referring to the fact that these constituencies are island seats. As such, they are separated from the mainland by the sea and have natural borders that arguably help to create and, over time, reinforce a particular sense of community. That certainly makes them unusual—I repeat that I accept their entitlement to special status—but it does not make them unique. For example, they are not the only island seats in the United Kingdom. What about Argyll and Bute? That constituency is comprised of 13 islands. What about Anglesey? It is not in exactly the same position as Orkney and Shetland or the Western Isles, but then Orkney and Shetland and the Western Isles are not in exactly the same position as each other. They are all islands; they are island communities; they have very obvious natural borders, which give rise to issues of accessibility; and they have powerful local ties and traditions. While the two Scottish island seats are to be preserved by this Bill, however, apart from the change made by your Lordships’ House, the other islands are not.

This House has rightly judged that the way in which the Bill would have split the Isle of Wight was not suitable. Tagging 40,000 Isle of Wight voters on to a part of Hampshire would have had a significant ripple effect throughout that county, as constituency boundaries were forced to be redrawn all over the place as a consequence of the influx of new voters. If a special case can be made for the two Scottish island seats, it can also be made for several other hard cases.

--- Later in debate ---

[Lord Falconer of Thoroton]

I am sorry to interrupt, but I do not think that the noble Lord's wife could have been seven months old at the time.

[Lord Crickhowell]

However, those who had organised it had foreseen that possibility and, luckily, there was someone watching with binoculars and we were brought ashore. In the case of Ynys Môn and the mainland, there is a short suspension bridge that you can walk across in a couple of minutes which, incidentally, bears an inscription that tells us that the grandfather of the present Chairman of Committees removed the tolls when he was Secretary of State for Transport. The other bridge, the great Brunel railway bridge, which was severely damaged by fire and, when it was reconstructed, had a road built on top of it, is again a perfectly comfortable walk across. I walked across it during its reopening ceremony.

The truth is that a great many people in Anglesey do their shopping not on the island but in Bangor. If they are going to hospital, they certainly go to Bangor, because that is where the district hospital is. When I used to travel up frequently as a director of Anglesey Mining, I usually got off the train at Bangor rather than Llangefni. The university obviously provides a hub of activity in Bangor, and great services are held in Bangor Cathedral. When my dear friend Kyffin Williams, the great Welsh artist, died, his service of commemoration was in the cathedral at Bangor, not on the island.

People say, “Ah, but history”. If you go back into the depths of history, the links between the mainland and the island had been very close. When Edward I launched his first assault on Llewelyn the Great, Llewelyn-ap-Gruffydd, the Prince of Wales, he sent the ships of the Cinque Ports to capture Anglesey. Immediately, they destroyed the grain harvest and Llewelyn capitulated. Since then, Anglesey has not been the granary of Gwynedd, but it has been the place to which the farmers of Snowdonia sent their sheep to fatten. Indeed, as my noble friend Lord Roberts of Conwy will recall, after the Chernobyl nuclear disaster, it became a central part of the agricultural activity of the area that lambs had to be sent down to the island for fattening. Indeed, I believe that some of them still are.

The links between both sides are extremely close. The natural constituency is therefore Anglesey linked to Bangor. Dividing the Arfon constituency so that Caernarfon is linked with the neighbouring constituency of Dwyfor Meirionnydd fulfils pretty closely the general objectives of the Government, and I cannot see that in the case of Anglesey a strong case can be made out for special treatment. Therefore, on this occasion—I think for the first time during my activities on the Bill—I find myself supporting the Government.

--- Later in debate ---

[Lord Strathclyde]

My Lords, there is no evidence to suggest that that would be the likely result. The review might result in more marginal constituencies: I have not the faintest idea. The people who decide whether a seat is safe or marginal are the electors in that constituency, not the Boundary Commission.

[Lord Falconer of Thoroton]

My Lords, I will reply and then the noble Lord, Lord Teverson, will reply. That was a debate from a golden age in the House of Lords. It had three particular characteristics. We focused on the issue, we heard brilliant speeches from all sides of the House and we had a fabulously attractive speech from the noble Lord, Lord Strathclyde, in which he pretended that the argument was about one thing and answered that.

I will speak first about individual places. The noble Lords, Lord Crickhowell and Lord Roberts, made powerful speeches about why Anglesey should not be treated separately because of its relationship with Bangor. My noble friend Lord Touhig made an equally powerful speech about why it should be treated separately. It is inevitable in the light of the way that the Bill was drafted that this is what must be done. The noble Lord, Lord Strathclyde, stated that we say that there should be other factors and Government say that the issue is numbers. I am afraid that that is not what the debate on this amendment is about. The Government have accepted that there should be exceptions. We accept the principle of equality. There should be a small number of exceptions: the question is what they should be. Because there is no independent process to decide this, it must be done in the way that the noble Lord, Lord Fowler, managed with the Isle of Wight, and in the way that has been done tonight. With the greatest respect to the noble Lord, Lord Strathclyde, and in admiration for the attractive way in which he can distract us from the real point, the question is: what should the exceptions be?

The powerful speeches made by the noble Lords, Lord Roberts and Lord Crickhowell, show that we need to think about whether Anglesey should be an exception. In relation to Cornwall, I hope that I will not make the same mistake as the noble Lord, Lord Strathclyde, by saying, “This is what I think the people of Cornwall want”. We must listen to what they have to say. The noble Baroness, Lady O'Cathain, rightly placed her finger on the point; we are seeking to determine the way in which we elect people to a national forum. However, that does not answer the question about how we select the units within which they will select those national representatives. I am very conscious of that, having spoken to people from Cornwall and having heard what they said to me. As the noble Lord, Lord Strathclyde, was good enough to acknowledge, Cornwall appears united on the issue. If I was allowed to refer to the Public Gallery, which I am not—I am conscious of the fact that the noble Earl, Lord Ferrers, is not here—I would imagine that any elected representatives there would have nodded vigorously when I said that the people of Cornwall were united in this respect. I am conscious of the fact that there is strong feeling on this issue.

The amendment has given us the opportunity to consider a range of possible exceptions. There is agreement in this House on three of the exceptions: the two Scottish island constituencies and the Isle of Wight. There is a division of view about the Isle of Anglesey. There has been broad support for Argyll and Bute, but we have not had a detailed debate on it, nor in relation to the Highland Council. The striking thing about this debate has been the position of Cornwall, which everyone has acknowledged. We cannot vote on this compendious amendment because it covers too many constituencies and there are different views in relation to it. However, it is perfectly obvious that we will have to revisit the issue of Cornwall.

On the question of Cumbria, I do not necessarily agree with my noble friend Lord Liddle that it was not included in our amendment simply because he did not get to me in time, although, having heard what he and my noble friend Lord Campbell-Savours said, one can see that there is a case for Cumbria. I say with respect and tentatively that it does not appear to have the same universal support as Cornwall.

We note very carefully what has been said in the course of what has been a very good debate, and we will obviously come back at Report with what may be a more honed amendment.

[Lord Teverson]

My Lords, I thank the Leader of the House for least going through the arguments. I must admit that I find them difficult to follow on this amendment. These small exceptions—exceptions have already been made—do not make a fundamental difference to the Bill, nor to the way that the solution for constituencies and democracy in this country would work. I find that response disappointing. I accept that not every area in that list may be correct, and that it is perhaps therefore not right to vote on the amendment this evening, but I strongly believe that community matters. Although what the noble Baroness, Lady O'Cathain, said, was absolutely right—this is a national forum—we sometimes forget in this House a thing called casework, which comes to Members of the other place. That is hugely community-based.

I have to make one last admission. When I was an MEP, I was MEP for the Isles of Scilly, for Cornwall and for West Plymouth, and the constituency covered the River Tamar. It was not a good solution and did not necessarily work well for the city of Plymouth—although I felt that I did a fantastic job. The difference between those communities was huge, and the practical outcome was that that was not the right solution. I hope that the Government—whom I support in every other way—will reconsider this important area for the future. We live to fight another day for Cornwall in another argument. That is important.

--- Later in debate ---

[Lord Falconer of Thoroton]

My Lords, we have had a tour around Britain right around the House since supper. Every place we have stopped at has been absolutely fantastic on the basis of the speeches that have been made, but Cornwall should be very proud of my noble friend Lord Myners, the noble Lord, Lord Tyler, the noble Lord, Lord Taylor, who is not in his place for reasons I cannot understand, and the noble Lord, Lord Teverson, who is also not in his place. They make not just a strong case for Cornwall, but a case that obviously catches the mood of the House.

There is an issue about precisely how the problem is to be dealt with. The first amendment that we are either debating or not debating at the moment states:

“Parliamentary constituencies shall not cross the county border of Cornwall”.

That amendment was not moved by my noble friend Lord Kennedy. My noble friend Lord Berkeley did not move his amendment, but it states that:

“No constituency shall include parts of both the counties of Devon and Cornwall”.

My noble friend Lord Myners has moved his amendment which states:

“There shall remain the current number of constituencies in Cornwall, and these constituencies shall be entirely within the county of Cornwall”.

The amendment that has least favour technically is the amendment moved by my noble friend Lord Myners. The one that plainly has universal support is the amendment that states that no constituency should cross the boundary between Cornwall and Devon.

It is interesting that the noble Lord, Lord Taylor of Goss Moor, who made an effective and forceful speech, made the point that was made in our earlier tour of Britain, which I know the noble Lord is sorry he missed. It is that communities are what matter in relation to this. There are two ways to give effect to “Thou shalt not cross the boundary between Devon and Cornwall”: either by a 10 per cent margin, which studies suggest would mean that the Devon/Cornwall boundary would not be crossed, or by making Cornwall an exception to the rule about county boundaries. I sense that the House wants to do something about Cornwall, and we need to consider between now and Report what is the best way to deal with that problem.

I specifically pay tribute to the contribution made by my noble friend Lord McAvoy in these debates. He has spoken with just as much elegance and eloquence as everybody else in relation to his community. He has made a substantial contribution to this debate and will make very substantial contributions to debates to come.

[Lord Wallace of Tankerness]

My Lords, I am conscious that some hours ago I replied to a debate in which the issue was not crossing the rivers Tyne, Thames and Mersey, but I rather suspect that the Tamar is slightly wider in symbolic terms than those rivers. When I entered another place in 1983, my knowledge of things Cornish was not extensive. An acquaintanceship, I like to think also a friendship, with the late David Penhaligon soon put an end to that. He made very clear what the essence of being a Cornishman was. On numerous subsequent occasions I was able to visit Cornwall and I certainly recognise the passion with which noble Lords have expressed their affinity with Cornwall and the arguments they have presented today.

It is obvious—the case has been made for some time—that this part of the Bill seeks to address the significant differences in size between many parliamentary constituencies. Those differences make the effect of votes in some parts of the country more effective than others depending on where people live. We seek to address that with a parity rule which requires constituencies to be within 5 per cent of the United Kingdom electoral quota. The noble and learned Lord, Lord Falconer of Thoroton, said that the matter under discussion on the amendment of the noble Lord, Lord Myners, could be addressed by a 10 per cent flexibility. While that would be a better bet, there is no guarantee that it would not result in one constituency crossing the Tamar.

The issue of what the exceptions should be has been well debated, both in previous sessions of the Committee and today, and the Government have made it clear that extreme geographical circumstances can make it necessary to do so, specifically with regard to Orkney and Shetland and the Western Isles—remote islands and communities which are not readily accessible for inclusion with a mainland constituency—and the House voted last week on the Isle of Wight. Aside from these specific exceptions, the Government do not feel that other features should detract from the fundamental principle of equality between constituencies and votes.

As I have indicated, I am well aware of the depth of feeling on the subject of the Cornish boundary. I have received numerous e-mails and letters on the subject and representations from my honourable friends, Andrew George, Stephen Gilbert and Dan Rogerson. I am under no illusions as to the strength of feeling and I recognise that Cornwall has a proud and unique history.

It was significant that my noble friends Lord Tyler and Lord Taylor of Goss Moor said that they may be prepared to accept underrepresentation, but the two amendments which might have provided for that were not moved. We have before the House today an amendment which does the opposite and would lead to overrepresentation. That would be a much more difficult position from which to make exceptions and it does not carry the same kind of moral force as the point argued by my noble friends.

The Government do not agree that an MP would not be capable of representing people effectively in both Cornwall and Devon at the same time. It was not fair to say, as was said in an earlier debate, that my noble friend Lord Strathclyde had been dismissive of Cornwall’s opinion because he made the factual statement that some people living in Cornwall work in Plymouth. That point was acknowledged by the noble Lord, Lord Myners, when he moved the amendment. It is of course the case—although it may not be instinctively what people think—that there is some community of interest between people living in one county and working in the other. I do not believe that a Member of Parliament could not represent a constituency effectively, wherever his constituents lived within Devon or Cornwall.

Several constituencies have widely varying cultural factors. I recognise the strength of the arguments but, given the parity that the Government seek and that exceptions should be limited to where there are extreme geographical considerations, it is not possible to accept the amendment. I therefore invite the noble Lord, Lord Myners, to withdraw it.

--- Later in debate ---

Moved by

[Lord Falconer of Thoroton]

89A: Clause 11, page 11, leave out lines 12 to 26 and insert—
“Allocation of constituencies
(1) The adjusted UK electoral quota shall then be calculated as the total electorate of the United Kingdom less the areas listed in rule 4(1) divided by 650 minus the total number of seats allocated to the areas listed in rule 4(1).(2) Each part of the United Kingdom shall then be allocated a whole number of seats as follows.(3) The first seat shall be allocated to the part of the United Kingdom with the largest electorate.(4) The second and subsequent constituencies shall be allocated in the same way, except that the electorate of a part of the United Kingdom to which one or more constituencies have already been allocated is to be divided by—2C+1where C is the number of constituencies already allocated to that part.(5) An electoral quota shall then be calculated for each of the four parts of the United Kingdom by dividing the electorate of each part of the United Kingdom by the number of seats allocated as described in rules 5(3) and 5(4).(6) The total number of seats to be allocated to any part of the United Kingdom shall not be more than 10% above or below the current number of constituencies, and if the number of seats allocated by the process described in rules 5(3) and 5(4) exceeds that limit, then additional or fewer seats shall be allocated as appropriate sufficient to bring the allocation within 10% of the current number of seats in the part of the United Kingdom concerned.(7) This adjusted number of seats shall be the allocation for that part of the United Kingdom for the purposes of rule 5(5).”

[Lord Falconer of Thoroton]

My Lords, disappointingly for Members of the House, this is not part of our tour of Great Britain. This is about the maths of the proposals made in the Bill. The practical purpose of this particular amendment is to create an adjusted electoral quota for each of the four parts of the United Kingdom, having first discounted the whole constituencies that we suggest should be allocated to certain parts of the country including Cornwall and the Isle of Wight. It also prevents any part of the UK having an increase or decrease in representation of more than 10 per cent of its seats at any one boundary review.

As noble Lords who have studied this amendment will appreciate, and I imagine that there are many of you who have, it is a rather technical revision which is easier to understand and easier to explain in the context of the other amendments we have tabled to Clause 11 of the Bill. This is because these amendments, when added together, would comprise an alternative set of rules for drawing parliamentary constituency boundaries. However, because we have tried to follow the chronology of the Bill when tabling our amendments, we have been forced to split our alternative scheme into individual elements. To use a motoring analogy: if our full set of amendments adds up to a car, Amendment 89A on its own only represents the spark plugs. However, because it would be difficult to describe a car if one was only allowed to refer to the spark plugs, I hope the House will allow me to explain the reasoning behind this specific amendment with reference to the others that we have tabled to the same clause.

Our amendments to Clause 11 would, if taken together, establish a new basis for drawing boundaries that would anchor the House of Commons at around 650 seats. They would create more equal-sized seats—reducing the disparities between electorates that the Government are anxious to tackle—while providing the Boundary Commissions with adequate room for manoeuvre to take account of wider factors including geography, community and history. Our rules would also ensure that in a limited number of cases, certain parts of the UK would be guaranteed an allocation of whole constituencies, to preserve the particular geographic or historic integrity that marks them out.

As your Lordships are no doubt tired of hearing, the proposed new rules for drawing constituencies put forward in the Bill are, we say, overly rigid and inflexible. They start from the premise that the Commons should be fixed forever at 600 seats. Two Scottish island constituencies are then discounted and a United Kingdom-wide electoral quota is calculated by dividing the rest of the UK electorate by 598. The Bill then employs the Sainte-Lague method for allocating seats to the four parts of the UK. Once those calculations are made, the Boundary Commissions are tasked with constructing the electoral map according to a strict electoral parity rule. Every seat must fit within 5 per cent either side of an estimated electoral quota of approximately 75,800.

In separate amendments, we have sought to inject greater flexibility into that parity rule, so that proper consideration can be given to concerns about geography, community ties and so forth. We have also tabled amendments to replace the Government’s rule for a 600-seat House of Commons with a “fixed divisor” that would anchor the House at around 650 seats but allow a small margin of leeway which would be of practical use to Boundary Commissions. Amendment 89A, the central focus of this debate, follows on from those amendments.

Under our scheme, an initial UK electoral quota would be calculated by dividing the total electorate of the UK by 650. That quota would then be used to calculate the number of whole constituencies that would be allocated to the areas listed in our Amendment 79A —which in our scheme would be the rule 4(1) referenced in Amendment 89A. Once that had been done, an adjusted UK electoral quota would be produced by the method outlined in Amendment 89A, which would become rule 5 in our scheme, reading:

“The total electorate of the United Kingdom less the areas listed in rule 4(1)”—

that is our Amendment 79A—

“divided by 650 minus the total number of seats allocated to the areas listed in rule 4(1)”.

So I imagine that that is very clear.

Once that calculation had been made, we would employ the Sainte-Lague method to work out the allocation of seats for the four parts of the United Kingdom. It would then be down to the Boundary Commissions to draw the constituency maps within those areas, guided by an electoral parity rule which states that constituencies would contain broadly the same number of electors. In our scheme, the level of tolerance in respect of the electoral quota would be 5 per cent in most cases but with a maximum level of disparity of 10 per cent where Boundary Commissions deemed it necessary to take account of significant other factors.

The Bill states that the electoral quota, which forms the basis of the parity law, should be universal across the UK. In other words, there should be a single UK electoral quota. However, our scheme would allow—once the initial calculations about whole constituencies had been made and discounted, and the Sainte-Lague formula used to allocate numbers of seats to England, Scotland, Wales and Northern Ireland—for a slight variation in the electoral quota between the four parts of the UK. That would be done by dividing the electorate of each part of the United Kingdom by the number of seats allocated to each part through the Sainte-Lague method. This would be only a very slight variation and would not cause any significant distortion. It would simply be a practical measure to give boundary commissions a little flexibility to cope with any awkward roundings up or down they might otherwise encounter when trying to impose a uniform UK electoral quota everywhere.

That could be a genuine problem in Northern Ireland and Wales which, given their smaller size, may struggle to construct an electoral map on which every seat is able to meet the narrow tolerances that the Bill sets around the proposed uniform electoral quota. Indeed the Bill already recognises this potential problem in the case of Northern Ireland, which is why rule 7 enables the Boundary Commission in that part of the UK to disapply the electoral parity rule when it feels that is necessary. We believe that our overall scheme provides a more sensible way of tackling these problems. As I made clear at the beginning, it would deliver more equal-sized seats but would inject more common sense and practicality into the process.

Finally, Amendment 89A would ensure that the total number of seats to be allocated to any country shall not be more than 10 per cent above or below the current number of constituencies, and if the number of seats allocated by the process I have outlined exceeds that limit, additional or fewer seats would need to be allocated as appropriate to bring the allocation into line with this rule. That is particularly pertinent in the case of Wales, which under the Bill would see a reduction of 25 per cent in its parliamentary representation, from 40 to 30 seats. That is too great a reduction in one review. I remind noble Lords of the speech of my noble friend Lord Touhig about what the effect of such a sharp reduction might be on the union. It would cause massive disruption to long-established patterns of representation, producing one seat that would be almost half the landmass of Wales, and others that would divide valleys irrespective of community ties and problems of accessibility.

Perhaps even more significantly, that sudden reduction, which would cut the number of Welsh parliamentary seats below the current legal minimum of 35, could alter the way in which the UK Parliament is viewed in Wales. I think the Government need to think quite carefully about introducing major political and administrative changes that could undermine the union. The Conservative Party historically adopted a sensitive approach to issues concerning the union, but in this Bill that is less evident than previously. That is an important point.

Overall, this is a quite technical amendment which, as I explained at the beginning, cannot be viewed in isolation. However, when seen in the round I hope that it illustrates that there is an alternative to the scheme set out in the Bill which would nonetheless deliver more equal seats, which is the Government's central objective. I hope that it is symbolic of the fact that we have thought very carefully and deeply about this matter and have endeavoured to propose a scheme that would improve the Bill. Our alternative goes with the grain of the Bill’s main aim, which is to create more equal seats, but it does so more practically and sensitively than the plan which the Government have put forward. I ask the noble and learned Lord, a man of great practicality and sensitivity, to explain why his scheme is better than ours. I beg to move.

[Lord Wallace of Tankerness]

My Lords, I am tempted to say that perhaps the prime reason why the Government’s scheme is better is one of simplicity. With the two exceptions given in the Bill, we would divide the United Kingdom electorate by 598 to give us the electoral quota with a 5 per cent variation either way. However, I recognise that considerable work has gone into producing the noble and learned Lord’s alternative method of allocating constituencies to the nations of the United Kingdom.

Perhaps one of the most fundamental differences, and it is at the heart of the amendment, is that, whereas the Government’s proposal is for a Parliament of 600 Members in the House of Commons, the alternative scheme would seek to retain the present size of the House of Commons, since 650 would be used as a baseline for future reviews. I do not intend to open up all the arguments that we had at some hours of the morning last week on 650 versus 600.

The Government’s clear view is that there is a case for making a reduction in size. We have articulated it and had debates about it. Our proposal is simply to end the upward pressure on the number of Members of Parliament, which has seen an increase in every successive boundary review since 1950, with the exception of that which came immediately after Scottish devolution. However, in making that proposal, we have been mindful to reflect an existing range of experience. Six hundred gives a quota of around 76,000, which, if my memory serves me correctly from earlier debates, is within the 5 per cent-either-way range of a third of the constituencies in the other place. It also seeks to ensure that the reduction in number of seats is not wholly disruptive.

The amendment would limit any change in the number of seats in each nation to 10 per cent of the existing number. If the intention is therefore to allow a phased reduction—I think that that was the point which the noble and learned Lord was making, not least in respect of Wales—I ask the Committee to bear in mind that the secretary to the Boundary Commission for Scotland made it clear in evidence to the Political and Constitutional Reform Committee that there would be no advantage in doing that. He said that it would be better instead to reduce the number of seats in one go so that disruption was reduced in the longer run, rather than have successive disruptive boundary reviews. The Government agree with that.

Has the noble and learned Lord done any modelling on the 650-seat base, given the absence of a size limit on the House in his amendment and given that the Sainte-Lague formula could continue allocating seats? His amendment says 10 per cent more or 10 per cent less, so it could work in a way that the number of seats reached the absolute limit of 10 per cent above each nation’s current allocation and we could end up with a House of 715, which would be 10 per cent more than 650. I fully understand what the noble and learned Lord said about a phasing-down, but his amendment would allow also for the total to go up by 10 per cent. I suspect that that is not the intention of his amendment, but is he able to reassure us that that would not be the effect? I think that there is enough doubt and complexity in the amendment for me to invite him to withdraw it.

[Lord Falconer of Thoroton]

Naturally I am disappointed by the response to my scheme. I am not sure what the answer is to the question of whether it can go up to 715, but that is only because of my mathematical inadequacy, not because the scheme is necessarily flawed in any way. However, I will consult my advisers closely on whether that very unlikely possibility could occur.

If I may, I will deal with the bit that is easier to deal with: phasing. With no disrespect to the boundary commissioners, it is perhaps not surprising that the people tasked with drawing the boundaries would say that it is much easier to get there in one go than in a series of phased goes. You would not expect the boundary commissioners to judge, or attempt to judge, the effect on the constitutional glue that holds our country together, because their job in effect is to apply particular rules that are obviously easier to apply if there is no phasing. Without in any way disrespecting the view that they express about the technical process, it is surely for Parliament to judge the effect of reducing the representation of one part of the United Kingdom by 25 per cent over a period of four years on the national glue that holds the country together.

Ultimately, I suspect that it is our view, not just the view that will prevail, which is constitutionally the position, that it is better to listen to than the Boundary Commission’s. I hear what the noble and learned Lord says about my maths, which may well be well judged. However, on the other more significant constitutional issue, I am not persuaded by a quote from the secretary of the Boundary Commission that that is the most authoritative voice on whether phasing is sensible. We will certainly come back to that second part on Report. Meanwhile, I beg leave to withdraw my amendment.

Amendment 89A withdrawn.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, Amendment 89BZA deals with the unlikely, but nevertheless mathematically possible, scenario in which the Sainte-Lague formula results in a tie in entitlement between two or more nations as to the final seat. In the Bill as drafted, there is no way of resolving such a tie, so it would be unclear as to which of the four nations of the United Kingdom would have the final seat. The amendment proposes, in these circumstances, that the final seat be allocated to the nation with the smaller or smallest electorate. Although both nations would have equal mathematical entitlement to the seat, I hope noble Lords will agree that, in these perhaps highly unlikely circumstances—nevertheless, we have to take account of all possibilities—it would be fairer for the nation with the smallest electorate to have it, given that the nation with the larger electorate will almost certainly have a larger number of constituencies across which the extra electors could be spread. On that basis, I beg to move.

[Lord Falconer of Thoroton]

I have just three questions. First, why will it apply only in the final seat? Why would it not be possible for there to be a tie on the way there? Secondly, when it says,

“smaller or smallest actual electorate”,

what is the difference between “smaller” or “smallest” actual electorate? Thirdly, does “smaller or smallest actual electorate” refer to the total electorate in that part of the United Kingdom, or to the electorate that is left? I am more than happy to repeat my questions if any of them are not clear. However, they are not alternative; they all have to be answered.

[Lord Wallace of Tankerness]

I hope I can answer them. My understanding of the amendment is that the tie would happen at the end with the last seat.

The noble and learned Lord asks me why it is the, “smaller or smallest … electorate”. It is a grammatical issue. My understanding is that it would be the actual electorate for Scotland, Wales or Northern Ireland, and not the balance. I think that that must be right—and I think it is because of the possibility of a tie. For the sake of argument, if it was between Scotland and Northern Ireland, Northern Ireland would have a smaller electorate than Scotland. If it was between Scotland and Wales, Wales would have the smaller electorate.

[Lord Falconer of Thoroton]

That is very helpful. So you could have a situation in which England, Scotland and Northern Ireland all tie for smallest electorate. and you would give the last and therefore additional seat to Northern Ireland because it has the smallest of the populations or registered electorates of those three countries. What is the logic of giving it to the smallest?

[Lord Wallace of Tankerness]

The logic of giving it to the smallest is that there is a sense of fairness in that. Also, the larger country has more seats over which to spread the extra number of voters that would result from that; it would be much more difficult to spread them over the country with the smaller electorate.